Marsala v. Yale New Haven Hospital (Conn App Dec 2015)

Transcription

APPELLATE COURT
OF THE
STATE OF CONNECTICUT
AC 37821, 37822
CLARENCE MARSALA, ADMINISTRATOR OF
THE ESTATE OF HELEN MARSALA, ET AL.
V.
YALE-NEW HAVEN HOSPITAL
APPENDIX OF DEFENDANT-APPELLEE
PARTS 1 AND 2
ATTORNEYS FOR
DEFENDANT- APPELLEE:
Jeffrey R. Babbin
Tadhg A.J. Dooley
WIGGIN AND DANA LLP
One Century Tower
P.O. Box 1832
New Haven, CT 06508-1832
(203) 498-4400 (tel.)
(203) 782-2889 (fax)
[email protected]
[email protected]
Juris No. 67700
TABLE OF CONTENTS
Part 1
PLEADINGS AND COURT ORDERS
1.
Additional relevant pleadings, motions and opinions
a.
Amended Affidavit of Margaret Pisani, M.D
(dated September 11, 2014) [#130.00] ...................................................... AA1
b.
Motion to Stay Action (dated April 29, 2015) [#175.00] .............................. AA5
c.
Decision Granting Motion to Stay trial pending appeal
(dated April 29, 2015) [#175.10]................................................................. AA8
2.
Appellate Motions and Orders
a.
Motion to Consolidate Appeals (filed May 14, 2015) .................................. AA9
b.
Order (dated June 11, 2015) .................................................................... AA14
Part 2
1.
DEPOSITION TRANSCRIPT (EXCERPTS)
Deposition Testimony of Andrew Boyd, M.D.
8/20/14, pp. 70-78 (filed in trial court as part of summary judgment record).. AA15
2.
UNPUBLISHED CASES NOT IN APPELLANTS’ APPENDIX
Hernandez v. Yale-New Haven Hosp.,
No. CV-095028884S, 2010 WL 3786861
(Conn. Super. Ct. Aug. 31, 2010) .................................................................. AA25
Huber v. Bakewell,
No. DBD-CV-146015023S, 2015 WL 3973881
(Conn. Super. Ct. June 3, 2015).................................................................... AA33
3.
STATUTES AND LEGISLATIVE MATERIALS
Conn. Gen. Stat. § 19a-570........................................................................... AA37
Conn. Gen. Stat. § 19a-571........................................................................... AA39
Conn. Gen. Stat. § 19a-580........................................................................... AA41
Conn. Public Act 85-606................................................................................ AA42
Conn. Public Act 91-283................................................................................ AA45
i
. SUPERIOR COURT.
DOCKET NO.: AAN-CV-12 6010'861-S
r
J.D. OF MILFORD/ANSONIA.
CLARENCE MARSALA, ET AL.
AT MILFORD
VS.
YALE-NEW HAVEN HOSPITAL •
SEPTEMBER 11,2014 .
DOCKETNO. AAN-CV-12-6011711-S
SUPERIOR COURT
CLARENCE MARSALA, ADMMSTRATOR
' OF THE ESTATE OF HELEN MARSALA.
J.D. OF MILFORD/ANSONIA
•
\
AT.MILFORD •
VS.
SEPTEMBER 11,2014
YALE-NEW HAVEN HOSPITAL . . .
A M E N D E D A F F I D A V t T O F M A R G A R E T P I S A N L M.D.
x
1-. I am oyer-the age of 18 andmderstandtieoMgationof anoath. •
2. I make this affidavit 'based on personal knowledge and on information- contained
witbin.the medical records of Yale New Haven Hospital pertaining to Helen Marsala.
3. 1 am a physician licensed bythe state' of Connecticut. I am board certified in.
Memal Medicine, Pulmonology and Critical. Care.
'
•
4. - In 2010,1 was employed by the Yale Medical Group and was an attending,
physician'at Yale..New Haven Hospital providing care to patients in the Medical Intensive
Care Unit.
•-
'
.;
.
'
• 5. I was one of the attending physicians responsible for the care of Helen Marsala .
during her admission to Yale New Haven Hospital from' June 18,2010 through M y 24,
2010. .
^^N
• 6. I have reviewed the Yale New Haven Hospital records of Helen Marsala;
Attached hereto as Exhibit 1 are true and accurate copies of excerpts from those records.
7.. Mrs. Marsala was admitted to the Medical Intensive Care Unit at Yale-rNew . •
Haven Hospital on June 18,2010. According to the history provided at the time of her
admission, she had been admitted to the intensive Care Unit at Griffin Hospital on May 24,
2010 with altered mental status and acute renal failure, and she was intubated, on May 26, ,
2010. She was transferred to Yale-New Haven Hospital on a ventilator after physicians at
Griffin Hospital were unsuccessful in their efforts to remedy her depressed neurological
functioning, which made intubation necessary, The plan was to conduct furfher'workup with
the hope that we. could identify the cause of, and reverse, her comatose state.,
8. Mrs, Marsala had a dire prognosis upon her adnrissiori to Yale-New Haven
Hospital, and despite conducting many tests and trying many treatments drjLring the course of
her admission to the Hospital in an attempt to resolve her depressed neurological functioning,
' her condition worsened,
• "
•
•
9. Throughout Mrs. Marsala's adnnssioh fo Yale-NewHavenHospital, members of •
her medical team.had many conversations with her husband about her condition. In one of
these conversations Mr, Marsala agreed that aggressive resuscitation, efforts should not be
provided given-Mrs. Marsala's condition, and he consented to an entering of an order making
her'Do Not Resuscitate."
10.. There are significant medical risks with patients who are intubated and ventilator-'
dependent and it is standard practice to limit the time patients are intubated. Prolonged
intubation may further depress one's mental status, and we hoped that Mrs. Marsala's mental
' status might improve when the ventilator was ^continued. I believed that removing the
^Ô
ventilator and allowing Mrs. Marsala'to try and breathe on her own arid see if her mental
status would improve was the best course of treatment after a comprehensive medical
. evaluation.
1 i . In an effort to determine whether Mrs. Marsala could be removed from the
ventilator, we conducted weaning trials, turning off the ventilator for short period oftiiheto
see-if she was capable of breathing on her own. By M y 20,2010, Mrs. Marsala had passed
several of mese .weaning trials and she was extubated. None of her family members were
present when she was extubated, •
12. Unfortunately, extubation did not have, a significant impact on her mental status,
Within a short time after extubation, she started to have difficulty breathing and clearing her
secretions. Supplemental oxygen was provided through a BiPAP mask'
13. I advised Mr. Marsala that I had discussed the situation with my colleagues and
we felt that further aggressive treatment was futile and not in the best interest of his wife i n
that it would not promote her goal of returning home. I told him that I did not believe i t was
appropriate to re-intubate Mrs, Marsala if she became unable to breathe on her own, I '
advised Mr, Marsala that I intended to present this case to the Yale-New Haven HospitalEthics Committee for a recommendation about how to proceed, and I invited him to attend
1
the Ethics Corrrmittee meeting.
.
: 14. On M y 23,2010, the Yale-New Haven Hospital Ethics Committee met to discuss
the future care of Helen Marsala.. Mr. Marsala did not attend. At the conclusion of the
meeting, the Ethics Conxrnittee recommended that no escalation of Helen Marsala's care
should occur; she should not be re-intubated or given vasopressors or dialysis. Yale-New
Haven Hospital's Chief of Staff agreed with this recommendation. •
^^P
• 15. At Mr; Marsala's request, another physician who had not been mvolvedm Mrs.
Marsala's care was asked to provide'a second opinion as to the most appropriate course given
her dire prognosis. He concurred with the recommendation of the Ethics Committee at Mrs.'
Marsala's care should not be' escalated, comfort care .only should be provided.
16. During the final days of Mrs-.. Marsala's life it became increasingly difficult to get
in touch with Mr. Marsala. He was in the Hospital less frequently, and he did not answer or
return phone calls.
.
.
17. My decision to extubate Helen Marsala was based on the results of her
spontaneous breathing trials, and the decision of the Ethics Committee that she not be remtubated was made only with concern, for the best course of-treatment for'Helen Marsala.
My actions and the actions ofthe medical team caring for Helen Marsala were not intended
to cause any emotional distress to any member of her family.
Margaret Pisani, M.D.
The foregoing individual appeared before me
and swore to the truth and accuracy ofthe
foregoing this i ) dav of
2014.
Notary
vPublic/Comrni
Public/Cornrri! Of
Ofthe
the Superior
S
Court
My Commission Expires July 31,2016
^^Q
DOCKET NO.: AAN-CV-12-60T0861-S
CLARENCE MARSALA, ET AL.
SUPERIOR COURT
VS.
J.D. OF MILFORD/ANSONIA
AT MILFORD
APRIL 29, 2015
MOTION TO STAY ACTION
Pursuant to Practice Book §§ 61-11 (f) and 61-12, defendant, Yale-New Haven Hospital
("YNHH" or the "Hospital"), respectfully moves to stay the trial in this matter pending
resolution ofthe appeal filed by plaintiffs on April 6, 2015. Plaintiffs have appealed from the
decisions on the Hospital's Motions to Strike and for Summary Judgement which disposed of
twenty-three of the twenty-seven counts of plaintiffs' first complaint and the sole count of the
second complaint filed on behalf of the estate of Helen Marsala.
The grounds for this Motion are that the issues raised by plaintiffs' appeals arise from the
same facts that are at issue in the remaining counts awaiting trial. Should plaintiffs succeed in
reversing judgment on any of the claims on appeal, the matter might be remanded, and could
require a trial to resolve the remanded claims. At any such trial, all of the evidence that will be
presented in the forthcoming trial would have to be presented again in a subsequent trial. In the
interest of judicial economy, and to avoid the prejudice to the Hospital should two trials be
required, YNHH respectfully requests the Court stay the forthcoming trial until the issues on
appeal are resolved.
In support of this motion, YNHH relies on the Memorandum of Law in Support of
Motion to Stay Action, filed herewith.
^^R
Respectfully submitted,
DEFENDANT,
By:
/s/ Penny Q. Seaman
Penny Q. Seaman
Benjamin W. Cheney
Wiggin and Dana LLP
P.O. Box 1832
(203) 498-4400
Juris No. 067700
[email protected]
bcheney@wiggin. com
2
^^S
CERTIFICATION
This is to certify that a copy of the foregoing was served via electronic mail this 29th day
of April 2015, on the following counsel of record:
Jeremy C. Virgil, Esq.
Zeldes, Needle & Cooper, P.C.
PO Box 1740
Bridgeport, CT 06601-1740
[email protected]
Is/ Penny O. Seaman
Penny Q. Seaman
3
^^T
ORDER
422677
DOCKET NO: AANCV126010861S
SUPERIOR COURT
MARSALA, CLARENCE Et A l
V.
YALE-NEW HAVEN HOSPITAL, INC.
JUDICIAL DISTRICT OF ANSONIA/
MILFORD
AT MILFORD
4/29/2015
ORDER
ORDER REGARDING:
04/29/2015 175.00 MOTION FOR STAY
The foregoing, having been considered by the Court, is hereby:
ORDER: GRANTED
422677
Judge: THEODORE R TYMA
AANCV126010861S
Page 1 of 1
4/29/2015
^Û
AC 37821/37822
APPELLATE COURT
CLARENCE MARSALA, E T A L .
VS.
MAY 14, 2015
MOTION T O C O N S O L I D A T E A P P E A L S
Pursuant to Practice Book § 61-7(b)(3), defendant-appellee Yale-New Haven
Hospital ("the Hospital") moves to consolidate two appeals, AC 37821 and A C 37822,
which arise from the same trial court decision entered iri two lawsuits consolidated in the
trial court. The cases are factually intertwined, and judicial efficiency dictates that the two
appeals be briefed and argued together as if they were a single appeal.
A,
Brief History
Both lawsuits are personal injury actions arising from the death of Helen Marsala at
Yale-New Haven Hospital in July 2010.
1
Plaintiffs in the first lawsuit are Clarence Marsala,
as administrator o f t h e Estate of Helen Marsala ("the Estate"), Clarence Marsala in his
individual capacity as the spouse of Helen Marsala, and their five adult children, Michael,
Kevin, Gary, Randy and Tracey Marsala. Plaintiff in the second lawsuit is Clarence
Marsala, as administrator of the Estate. The Hospital is the sole defendant in both cases.
Both lawsuits seek damages for the Estate allegedly arising from the treatment of the
decedent at the Hospital from the same, hospital admission. The first lawsuit also added.
-
-•
Eh T '.. j hi $M SIOZ
• •
The first lawsuit is docket no, 'AANrt^2j6(itP861 -S in the trial court and no. A C 37822 in
this Court. The second lawsuitls, d o c k e t ^ g ; M N - C V 1 2 - 6 0 1 1 7 1 1 - S in the thai court and
no. AC 37821 in this Court..
* '"'
1
x
^^V
additional claims by the decedent's family members for their own alleged injuries from their
emotional distress.
B.
2
Factual B a s i s for Motion
The appeals in both cases were filed on April 6, 2015, arising from the same trial
•
court decision dated March 19, 2015 (Tyma, J.). The trial court issued a single,
consolidated summary judgment decision filed in both trial court dockets.
3
That decision
disposed o f t h e remaining claims asserted in the first lawsuit by the decedent's five adult,
children and disposed o f t h e only claim in the second lawsuit. All of those claims, which
are before this Court, are factually intertwined and relate to the Hospital's alleged actions
with respect to the treatment of the decedent during the hospital admission. All of theplaintiffs in both lawsuits are represented jointly by the same counsel.
C.
Legal Grounds for Motion
Practice Book § 61-7(b)(3) provides: "The appellate court, on motion of any party or
on its own motion, may order that appeals pending in the appellate court be consolidated."
For good cause shown, and in the interests of judicial efficiency, the Court should
consolidate the two appeals arising from the same set of facts and the same trial court
decision.
2
The operative complaint in the first lawsuit, the Second Amended Complaint, was filed on
October 22, 2012, attached to a motion for leave to amend the complaint, which the trial
court granted on December 3, 2012. The operative complaint in the second lawsuit, the
initial Complaint, was also dated October 22, 2012, and returned to court on November 9,¬
2012.
3
The trial court has also just issued a single judgment file, entered on the dockets of both
lawsuits.
2
^^NM
W H E R E F O R E , the Hospital respectfully requests that the Court grant this motion
and consolidate the two appeals for purposes of briefing and oral argument, with a single
briefing schedule.
DEFENDANT-APPELLEE
Y A L E - N E W HAVEN HOSPITAL
Jeffrey R. Babbin
Wiggin and Dana LLP
One Century Tower
P.O. Box 1832
(203) 498-4400 (tel.)
(203) 782-2889 (fax)
Juris No. 67700
3
^^NN
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing complies with all o f t h e provisions o f t h e
Connecticut Rules of Appellate Procedure § 66-3.
Jeffrey F£ Babbin
^^NO
CERTIFICATION
th
I hereby certify that on this 14 day of May, 2015, a copy of the foregoing motion
was served by first-class mail, postage prepaid, and by e-mail upon all counsel and pro se
parties of record as follows:
Jeremy C. Virgil, Esq.
Zeldes, Needle & Cooper, P.C.
P.O. Box 1740
Bridgeport, CT 06601-1740
(203) 332-5775 (tel.)
(203) 333-1489 (fax)
[email protected]
-b"
*r
Jeffrey R. Babbin
487/13067/3282450.1
^^NP
APPELLATE COURT
A C 37821 / 37822
CLARENCE MARSALA ET A L
V.
Y A L E NEW HAVEN HOSPITAL
JUNE 1 1 , 2 0 1 5
ORDER
T H E MOTIONS OF T H E DEFENDANT-APPELLEE, FILED MAY 14, 2015, TO
CONSOLIDATE APPEALS, HAVING BEEN PRESENTED T O T H E COURT, IT IS
HEREBY O R D E R E D G R A N T E D . PURSUANT TO P.B. §61-7, ALL A P P E L L A N T S
SHALL FILE A SINGLE, CONSOLIDATED BRIEF A N D APPENDIX. A L L A P P E L L E E S
SHALL FILE A SINGLE, CONSOLIDATED BRIEF OR, IF A P P L I C A B L E , A SINGLE,
CONSOLIDATED BRIEF A N D APPENDIX. ALL FILINGS S H A L L INCLUDE D O C K E T
NUMBERS A.C. 37821 A N D A.C. 37822, BUT BRIEFS A N D A P P E N D I C E S S H A L L BE
UPLOADED UNDER A.C. 37821 ONLY.
RENE L. ROBERTSON
T E M P O R A R Y A S S I S T A N T CLERK-APPELLATE
NOTICE SENT: June 1 1 , 2015
WIGGIN & DANALLP
Z E L D E S , NEEDLE & C O O P E R
143169/143170
^^NQ
Page 1
1
2
SUPERIOR COURT JD OF MILFORD/ANSONIA AT MILFORD
3
DOCKET NO. 7AAN-CV-12-6010861-S
4
5
x
CLARENCE MARSALA, ADMINISTRATOR OF
THE ESTATE OF HELEN MARSALA,
6
Plaintiff
7
vs .
8
YALE-NEW HAVEN
HOSPITAL,
9
10
Defendant
11
x
12
A u g u s t 2 0 , 2014
13
11:01
a.m.
14
15
DEPOSITION o f ANDREW BOYD, M.D.,
held
at the
16
offices
o f W i g g i n a n d Dana LLP, 450 L e x i n g t o n A v e n u e -
17
Suite
18
b e f o r e ELIZABETH SANTAMARIA, a N o t a r y P u b l i c
19
S t a t e o f New
3 8 0 0 , New Y o r k , New Y o r k , p u r s u a n t t o N o t i c e ,
of the
York.
20
21
22
23
24
25
Fink & Carney Reporting and Video Services
West 37th Street * New York, New York 10018
(800) NYC-FINK * (212) 869-:
^^NR
1
2
Boyd
the
tracheotomy.
3
So o n e o f t h e d i f f i c u l t i e s
4
logistically
5
the ethics
6
situation
7
has b o t h a t r a c h e o t o m y
8
hemodialysis.
9
Q
10
that
11
brain,
or practically,
o f i t , i s finding a place or a
o r a c a r e t e a m t o manage
You s a i d
as w e l l
that
i sthat
right,
12
A
Correct.
13
Q
I s that
state?
15
A
Again,
as r e q u i r i n g
slowing o f the
o f mental
function?
consistent with
it' s —
someone who
your r e c o l l e c t i o n i s
a n EEG s h o w e d d i f f u s e
14
i naddition t o
a comatose
I d o n ' t have t h e
16
expertise
o f , say,a n e u r o l o g i s t
17
comment o n t h e s p e c i f i c d e f i n i t i o n s o f w h a t i s
18
c o n s i d e r e d comatose b o t h f r o m a
19
perspective b u talso
I
20
would
t o be a b l e t o
clinical
f r o m a n EEG p e r s p e c t i v e .
say t h a t
i ngeneral I
diffuse
—
21
w h a t my u n d e r s t a n d i n g i s , t h a t
22
means t h e p a t i e n t
23
status.
24
h a s t o b e t o b e p u t i n t o coma o r i f someone i s
25
a coma a n d t h e n we l o o k a t t h e EEG a n d
has a depressed
But I don't
know how s l o w
slowing
mental
something
(800) NYC-FINK
^^NS
1
2
Boyd
d e t e r m i n e how t h e y
3
Q
This
4
I
5
signature
think
it's
correlate.
DNR o r d e r t h a t
page
1 on E x h i b i t
i sdated
A
Yes.
7
Q
And what does y o u r
connote?
Why d o y o u s i g n
A
9
1, your
I t means t h a t
signature
this?
i t has been
10
by an i n t e r n
11
that
12
needs t o be s i g n e d b y and t h e r e f o r e
13
reviewed by the a t t e n d i n g doctor.
o r a r e s i d e n t as b e i n g
t h e y a r e aware o f t h e e n t r y ,
Q
14
you had n o t had a c o n v e r s a t i o n
16
Mr. M a r s a l a
17
b e made DNR?
A
19
if
20
patient's
21
that
22
I
23
when he t o l d
No.
I would
I had e i t h e r
valid,
and then i t
connote
she s h o u l d
o n l y have s i g n e d
this
had t h e conversation w i t h a
family
have s i g n e d
even i f
with
you t h a t
o r had d i r e c t
c o n v e r s a t i o n being had.
Q
reviewed
Would y o u have s i g n e d t h i s
15
18
shown,
J u l y 4, 2 0 1 0 , c o r r e c t ?
6
8
y o u were
knowledge o f
Only then
would
it.
The l a w y e r
f o rthe p l a i n t i f f i s
24
implying
t h a t because your
note
documenting
25
y o u r c o n v e r s a t i o n w i t h Mr. M a r s a l a
i s dated
West 3 7th Street * New York, New York 10018
(800) NYC-FINK *
^^NT
1
Boyd
2
July
4 t h b u t you
3
July
1st, that
4
y o u r n o t e , i s t h e r e any
5
that
6
7
you
No,
Q
9
written
say,
11
Ms. M a r s a l a ' s
12
w i t h Mr.
13
statement?
15
"Last Thursday,
structure
I'm
i s no
And
July
q u e s t i o n i n my
you would
a
T h u r s d a y on
19
Ms. M a r s a l a ' s
20
w i t h Mr.
21
if
to
t o meet
the
question.
July
1 s t , 2010
"Last
called
to
b e d s i d e by h e r n u r s e t o meet
Marsala";
not
I was
would
you have w r i t t e n
that
true?
A
No.
23
Q
Is i t accurate that
went t o meet w i t h
A
you
called
I misunderstood
22
25
have
correct
Would you have w r i t t e n
18
24
mind
Okay.
17
i t was
not
4 t h where
1 s t , I was
i s that
sorry.
of the
Q
16
mind
Marsala?
bedside by her nurse
Marsala";
A
Given
q u e s t i o n i n your
note dated July
10
false.
him.
A l l right.
this
t o a c o n v e r s a t i o n on
n o t e was
there
I spoke t o
8
14
that
s p o k e t o Mr.
A
that
refer
Mr.
on
July
1st
you
Marsala?
Yes.
(800) NYC-FINK
^^NU
1
2
3
4
5
6
Boyd
Q
had spoken
A
You n e x t w r i t e ,
"He t o l d me t h a t h e
t o Dr. S i e g e l . "
Who i s D r . S i e g e l ?
Dr. S i e g e l
attending doctors
Q
t o Mr. M a r s a l a ,
8
ahead w i t h
9
he w o u l d
10
i n t h e ICU.
"And t h a t
7
i s a n o t h e r one o f t h e
f o r now, h e " —
I believe
the trach.
like
—
"would
However, he s a i d
t o make M r s . M a r s a l a
Did
I read that
A
13
Q
14
Mr. M a r s a l a
15
Mrs. M a r s a l a
16
A
No, I w o u l d n o t h a v e .
17
Q
Then y o u s a i d ,
18
Dr. M a r s h a l l
19
Dr. M a r s h a l l ?
22
23
t o go
that
DNR w i t h n o
properly?
12
21
like
compressions o r d e f i b r i l l a t i o n s . "
11
20
referring
A
Yes.
Would y o u have w r i t t e n t h a t i f
had n o t t o l d
t o b e DNR?
" I spoke
about t h i s . "
Dr. M a r s h a l l
newest a t t e n d i n g
Q
y o u he w a n t e d
taking
So h e w o u l d
with
Who i s
i st h elatest or
dare o f t h e p a t i e n t .
a l s o b e a n IC U
attending?
24
A
Correct.
25
Q
And Dr. Marshal
said
that
he w o u l d
(800) NYC-FINK
^^NV
1
Boyd
2
get i ntouch w i t h
Mr. M a r s a l a
3
Mr. M a r s a l a
about
that
4
A
About —
5
specifically
about t h e
trach.
Q
Okay.
7
A
The t r a c h e o t o m y .
8
Q
Got i t .
And i s t h e r e a n y p a r t
9
that
As I r e c a l l
reviewing
this
Q
13
of that
and, a g a i n , i n
note, no.
A t any time t h a t
y o u were
14
care o f Mrs. Marsala,
15
understanding o f her f i n a n c i a l
condition?
A
No.
17
Q
D i d y o u know how h e r b i l l s
being
taking
d i d y o u have any
16
18
note
i sn o t accurate?
A
11
12
with
also?
6
10
and t a l k
were
paid?
19
A
No.
20
Q
D i d y o u know i f t h e y w e r e
22
A
No.
23
Q
Were a n y t r e a t m e n t d e c i s i o n s made
21
24
25
being
paid?
based on h e r f i n a n c i a l
A
ability
t o pay?
No.
3 9 West 3 7th Street * New York, New York 10018
(800) NYC-FINK *
^ÔM
1
Boyd
2
Q
Do y o u r e c a l l
t h a t Mrs. Marsala had
3
weaning t r i a l s
4
taking
5
A
Yes.
6
Q
Can y o u e x p l a i n
what a weaning
A weaning t r i a l
i s , as a g e n e r a l
7
t h e time
that
you were
o f her?
trial is?
8
9
care
during
A
principle,
done t o mock o r s i m u l a t e t h e
10
c o n d i t i o n s under which
11
o n t h e i r own.
12
So t h o u g h
a patient
a patient
13
tube i n t h e i r
14
the v e n t i l a t o r
15
air
16
the patient
can breathe
17
see i f t h e y
are able
18
take t h e tube
pressure
still
has a
m o u t h , we e s s e n t i a l l y t u r n o f f
machine w i t h
a little
t o keep t h e t u b e
b i tof
open a n d t h e n
on t h e i r
t o breathe
own.
So we
w e r e we t o
out.
Now, t h o s e
19
can breathe
weaning t r i a l s a r e
20
done —
c a n be done v i a w e a n i n g so y o u c a n
21
start
22
y o u c a n g i v e some s u p p o r t
23
breaths and then
24
support o r h e l p day by day u n t i l
25
the point
with
a c e r t a i n amount o f h i g h
with
some
you t r y t o decrease
where t h e c o n d i t i o n s
pressure,
extra
that
you g e t t o
a r e such
that
? West 3 7th Street * New York, New York 10018
^ÔN
(800) NYC-FINK *
1
Boyd
2
you can c o n f i d e n t l y
3
a r e b r e a t h i n g on t h e i r
4
volume t h a t
5
able
t o breathe
6
come
out.
7
the tube
would be —
9
to
out,
and a t a
t h e y w o u l d be
own s h o u l d
t h e tube
you've even
taken
o u t t h e y w o u l d be a b l e t o
b r e a t h e o n t h e i r own.
Q
I s i t standard
weaning t r i a l s
13
ventilator?
14
A
Yes.
15
Q
And t h a t
purpose;
A
17
practice
on p a t i e n t s
i sthat
that
i t helps
19
that
i st h ep a t i e n t
20
can watch t h a t
21
their
us d e c i d e ,
therapeutic
p u r p o s e i n t h e sense
with
doing
And i n t h i s
some
evidence,
i t themselves
t h e y ' l l be a b l e
own i f t h e t u b e
i f we
t o b r e a t h e on
w e r e t o come o u t .
case, do y o u r e c a l l
23
t h a t w h i l e y o u were c a r i n g
24
s h e was g i v e n w e a n i n g
A
who a r e o n a
has a v a l i d
I t has a v a l i d
Q
t o do
true?
18
25
they
y o u have a sense o f i f y o u were
12
22
that
on t h e i r
take t h etube
11
16
essentially
own a t a r a t e
And t h e n b e f o r e
8
10
say t h a t
f o r Mrs. Marsala
trials?
Yes.
West 3 7th Street * New York, New York 10018
(800) NYC-FINK *
^ÔO
1
2
3
Boyd
Q
could breathe
4
A
5
Q
6
And t h e r e were i n d i c a t o r s
weaning
7
A
8
Q
The r e c o r d s
Does t h a t mean t h a t
extubated?
Q
she p o s s i b l y c o u l d be
14
correct?
o f f so she c a n b r e a t h e
Yes.
tube o u t o f t h ep a t i e n t ' s
17
b r e a t h e o n t h e i r own.
19
Q
A patient
indefinitely,
A
That's
21
Q
Why
22
A
Again,
can't
remain
so t h e y c a n
intubated
correct.
not?
a pulmonologist.
this
i s more t h e p u r v i e w o f
They a r e more o f an e x p e r t .
B u t i n my u n d e r s t a n d i n g ,
24
25
trachea
c a n she?
20
23
o n h e r own,
I t means c o m p l e t e l y t a k e t h e
16
18
training
safely
A n d e x t u b a t e d means t a k e t h e
ventilator
A
that
t h e r e were
Yes.
13
15
say she passed h e r
Yes.
10
12
right?
trial.
indicators
A
I s that
Yes.
9
11
o n h e r own.
t h a t she
i n i n t e r n a l medicine,
having
thet r i a l s are
39 West 37th Street * New York, New York 10018
^ÔP
(800) NYC-
Page
1
Boyd
2
usually
3
s t a y i n f o r two weeks.
4
that
5
malacia,
6
the trachea
7
not having
two weeks, m e a n i n g t h e i n t u b a t i o n
The
reason
i s beyond
a breakdown o f t h e t r a c h e a i t s e l f
t o support
itself.
you can a l s o g e t
9
breakdown o f s k i n
and t i s s u e
10
and i n t h e t h r o a t
because o f t h e p r e s s u r e
11
the
tube
against those
12
Q
13
Mrs. Marsala
14
July 20th,
15
of her at t h a t
The r e c o r d s
was
No.
17
Q
While
Mrs. Marsala,
19
children?
22
t h e mouth
of
areas.
indicated
that
Were y o u s t i l l
taking
—
care
time?
A
18
around
e x t u b a t e d on June 2 0 t h
2010.
16
I
so
s t a r t s t o c o l l a p s e because i t ' s
And s i m i l a r l y
20
can
you can g e t a t r o p h y o r what i s c a l l e d
8
21
78
you were t a k i n g
d i d y o u know t h a t
care
of
she h a d
A
I can't
recall
that precisely.
don't —
I don't
know.
Q
In this
complaint the
Haven H o s p i t a l
No,
Marsalas
23
c l a i m t h a t Yale-New
24
agents,
e m p l o y e e s , s t a f f members i n t e n d e d t o
25
inflict
emotional
distress
o n Mr.
and i t s
Marsala.
y^T^yfc.
? West 37th Street * New York, New York 10018
(800) NYC-FINK * (212) 869-30<
^ÔQ
H e r n a n d e z v. Y a l e New H a v e n H o s p . , Not R e p o r t e d in A . 2 d (2010)
emotional distress. On June 23, 2009, the defendant filed a
motion to strike counts two and three. The plaintiff filed a
2010 W L 3786861
memorandum i n opposition to the motion on October 2 1 ,
O n l y t h e W e s t l a w c i t a t i o n is c u r r e n t l y available.
2009. The defendant filed its reply on December 3, 2009.
UNPUBLISHED OPINION. CHECK
The parties appeared for oral argument at short calendar on
COURT RULES BEFORE CITING.
August 2, 2010. A t oral argument, the defendant withdrew
S u p e r i o r C o u r t o f Connecticut,
his motion to strike count two. The parties agreed that the
Judicial District of New Haven.
p l a i n t i f f s recovery under this count is predicated upon and
limited to the damages allowed by General Statutes § 52-204,
J u l i a n H E R N A N D E Z et al.
which states: " I n any c i v i l action arising out of personal injury
v.
or property damage, as a result o f which personal injury
or property damage the husband or parent o f the p l a i n t i f f
YALE N E W H A V E N HOSPITAL.
has made or w i l l be compelled to make expenditures or has
No. CV095028884S.
I
contracted indebtedness, the amount o f such expenditures or
A u g . 31, 2010.
indebtedness may be recovered by the plaintiff, provided a
Synopsis
recovery by the plaintiff shall be a bar to any claim b y such
Background: Mother, who witnessed her son's thumb and
husband or parent, except i n an action in which the husband or
finger turn blue i n hospital, filed medical malpractice suit
parent is a defendant." As such, this memorandum of decision
against hospital, which included a count for emotional
w i l l only address the legal sufficiency o f count three.
distress to a bystander. Hospital filed motion to strike the
bystander count.
Discussion
Holdings: The Superior Court, Judicial District o f New
Haven, Wilson, J., held that:
"The purpose o f a motion to strike is to contest... the legal
sufficiency o f the allegations o f any complaint ... to state a
claim upon which relief can be granted." (Internal quotation
[1] a cause o f action for bystander emotional distress is
permitted i n a medical malpractice case, and
marks omitted.) Fort Trumbull
Conservancy,
LLC v. Alves,
262 Conn. 480, 498, 815 A . 2 d 1188 (2003). " A motion to
strike is the proper procedural vehicle ... to test whether
[2] mother's allegations were insufficient to state claim for
bystander emotional distress.
Connecticut is ready to recognize some newly emerging
ground o f liability." (Internal quotation marks omitted.) Blue
v. Renaissance
Alliance,
Superior Court, judicial district o f
New Haven at Meriden, Docket N o . C V 05 4001949 (May
M o t i o n granted.
12, 2006, Shluger, J .).
The defendant argues that count three should be stricken
W I L S O N , J.
because a cause o f action for bystander emotional distress i n
the context o f a medical malpractice action is not recognized
Facts and Procedural
under Connecticut law. Moreover, the defendant argues that
History
even i f Connecticut recognized a cause of action for bystander
* 1 This action arises f r o m injuries allegedly sustained by
emotional distress i n the context o f a medical malpractice
Julian Hernandez and his mother, Aurora Hernandez, due to
action, the p l a i n t i f f failed to state a claim pursuant to the
the negligence o f the defendant, Yale New Haven Hospital.
four-part test enunciated by the Supreme Court i n Clohessy v.
Count one o f t h e complaint alleges that Julian Hernandez was
Bachelor,
negligently treated by the defendant. Count two alleges that
counters that Clohessy
the plaintiff, Aurora Hernandez, suffered economic damages
bystander emotional distress i n Connecticut regardless o f
as a result o f her son's injuries and count three alleges
whether the underlying negligence has arisen i n the medical
that the defendant is liable to the p l a i n t i f f f o r bystander
malpractice context. Resolution o f this motion, therefore,
237 Conn. 3 1 , 675 A . 2 d 852 (1996). The plaintiff
established a cause o f action for
1
^ÔR
depends on whether a cause of action for bystander emotional
states prior to 1959, which universally denied recovery f o r
distress should be recognized i n the medical malpractice
bystander emotional distress the court held that the plaintiff
context and i f so, whether the plaintiffs allegations satisfy the
cannot recover f o r injuries occasioned by fear o f threatened
Clohessy
harm or injury to the person or property o f another ... Such
test.
injuries are too remote i n the chain o f causation to permit
recovery... Even where a plaintiff has suffered physical injury
i n the accident, there can be no recovery for nervous shock
A
and mental anguish caused by the sight of injury or threatened
harm to another." (Internal quotation marks omitted.) Id., at
Bystander
Emotional
Distress
under Connecticut
Law
35, 675 A.2d 852.
* 2 The Clohessy court discussed the evolution of bystander
emotional distress i n Connecticut by examining three pivotal
cases: Strazza
v. McKittrick,
(1959); Amodio
146 Conn. 714, 156 A . 2 d 149
v. Cunningham,
(1980); and Moloney
v. Conroy,
182 Conn. 80, 438 A . 2 d 6
208 Conn. 392, 545 A . 2 d
1059 (1988). The court finds the Clohessy
court's analysis o f
these decisions instructive and thus, repeats i t below.
" I n Amodio,
physician's alleged medical malpractice that she claimed
caused the death o f her daughter. The plaintiff urged this
court to recognize a cause o f action for bystander emotional
distress as set forth in Dillon v. Legg, 68 Cal.2d 728,441 P.2d
912, 69 Cal.Rptr. 72 (1968). The California Supreme Court
in Dillon,
" I n Strazza,
the plaintiff mother sought damages f o r
emotional distress sustained as a result o f the defendant
the defendant negligently drove his truck onto
the porch o f the plaintiffs house. The impact shook the
house, causing the plaintiff to drop the dishes [she was
holding], lose her balance, and lean against the sink ... The
plaintiff screamed w i t h fright and became hysterical, thinking
o f disaster by earthquake ... Sometime after the impact, her
husband inquired about [their seven year old child], and the
plaintiff, thinking that the boy had been on the porch, became
fearful that he had been injured. This fear aroused a new
anxiety ... The plaintiffs only medical treatment was for a
nervous condition that resulted f r o m the fear o f injury to her
relying on established principles o f negligence,
focused on foreseeability, and held that "since the chief
element i n determining whether [a] defendant owes a duty
or an obligation to [a] plaintiff is the foreseeability o f the
risk, that factor w i l l be o f prime concern i n every case.
Because i t is inherently intertwined with foreseeability such
duty or obligation must necessarily be adjudicated only upon
a case-by-case basis ... The Dillon court then set forth three
factors to consider i n determining whether the emotional
injury to the bystander is reasonably foreseeable: (1) Whether
[the] plaintiff was located near the scene o f the accident as
contrasted w i t h one who was a distance away f r o m it. (2)
child. The court concluded that the plaintiff, because she was
Whether the shock resulted f r o m a direct emotional impact
w i t h i n the range o f ordinary danger, could recover damages
upon [the] plaintiff f r o m the sensory and contemporaneous
for the emotional distress she experienced as a result o f her
being put i n fear for her own safety, even though she had
sustained no consequential physical injury ... I n reaching its
conclusion, the court relied on Orlo v. Connecticut
Co., 128
Conn. 231,239,21 A.2d 402 (1941), which held that where i t
is proven that negligence proximately caused fright or shock
observance o f the accident, as contrasted w i t h learning o f t h e
accident f r o m others after its occurrence. (3) Whether [the]
plaintiff and the v i c t i m were closely related, as contrasted
w i t h an absence o f any relationship or the presence o f only
a distant relationship." (Citation omitted; internal quotation
marks omitted.) Id., at 35-36, 69 Cal.Rptr. 72, 441 P.2d 912.
[with respect to the person's own safety] i n one who is w i t h i n
the range o f ordinary physical danger f r o m that negligence,
and this i n turn produced injuries such as would be elements
o f damage had a bodily injury been suffered, the injured party
is entitled to recover." (Citations omitted; internal quotation
marks omitted.) Clohessy
v. Bachelor,
supra, 237 Conn, at
34-35, 675 A . 2 d 852.
* 3 "The Dillon
court went on to state that the evaluation
of these factors w i l l indicate the degree o f the defendant's
foreseeability: obviously [the] defendant is more likely to
foresee that a mother who observes an accident affecting
her child w i l l suffer harm than to foretell that a stranger
witness w i l l do so. Similarly, the degree o f foreseeability
o f the third person's injury is far greater i n the case o f his
" I n Strazza,
however, the court did not permit the plaintiff
to recover f o r the fright she had suffered f r o m mistakenly
believing that her child had been on the porch and had been
contemporaneous observance o f the accident than that i n
which he subsequently learns o f it. The defendant is more
likely to foresee that shock to the nearby, witnessing mother
injured. Relying upon the decisions o f the courts o f other
VVesilawNext' © 2015 T h o m s o n Reuters. No claim to original U.S. G o v e r n m e n t W o r k s .
^ÔS
2
H e r n a n d e z v. Y a l e N e w H a v e n H o s p . , Not R e p o r t e d in A . 2 d (2010)
w i l l cause physical harm than to anticipate that someone
distant f r o m the accident w i l l suffer more than a temporary
*4 " I n Moloney,
this court, again leaving the door open
for the foreseeability rule as set forth i n Dillon, rejected the
emotional reaction. A l l these elements, o f course, shade into
California Supreme Court's reasoning i n Ochoa.
each other; the f i x i n g o f obligation, intimately tied into the
may be the situation i n other contexts where bystander
Whatever
facts, depends upon each case." (Internal quotation marks
emotional disturbance claims arise, we are convinced that,
omitted.) Id., at 36, 69 Cal.Rptr. 72, 441 P.2d 912.
w i t h respect to such claims arising f r o m malpractice on
"The court i n Amodio
i n Strazza
another person, we should return to the position we articulated
recognized that a growing number
that there can be no recovery for nervous shock
o f jurisdictions, beginning i n 1968 w i t h the California
and mental anguish caused by the sight of injury or threatened
decision i n Dillon
harm to another." (Internal quotation marks omitted.) Id., at
... have recently recognized a cause
o f action for emotional distress i n favor o f a bystander
37-38, 1 5 6 A . 2 d l 4 9 .
to the negligently caused injury o f another party ... The
court also observed that under Dillon
the requirement o f
A f t e r analyzing these three decisions, the Clohessy
court
sensory and contemporaneous observance does not require
concluded: "We believe the time is ripe to recognize a cause
a visual perception o f the impact although it does require
o f action f o r bystander emotional distress. Under certain
that the plaintiff bystander otherwise apprehend the event...
circumstances ... we conclude that a tortfeasor may owe a
Without rejecting the foreseeability approach, the
Amodio
legal duty to a bystander. Consequently, a tortfeasor who
court held that the plaintiff mother could not recover
breaches that duty through negligent conduct may be liable
under Dillon because she did not have a contemporaneous
for a bystander's emotional distress proximately caused by
sensory perception o f the doctor's acts o f negligence.
that conduct. Accordingly, we now overrule Strazza
Merely observing the consequences o f the
to the
defendant's
extent that i t conflicts w i t h our opinion i n this case." Id., at
without perceiving
46, 156 A . 2 d 149. " [ A ] bystander may recover damages for
the actual negligent behavior, however, is insufficient to
emotional distress under the rule o f reasonable foreseeability
maintain a cause o f action for emotional distress to a
i f the bystander satisfies the following conditions: (1) he
negligence towards
another
person
bystander." (Citations omitted; internal quotation marks
or she is closely related to the injury victim, such as the
omitted .) Id, at 36-37, 69 Cal.Rptr. 72, 441 P.2d 912.
parent or the sibling o f the victim; (2) the emotional injury
"This court again addressed the question o f bystander
perception o f the event or conduct that causes the injury, or
emotional distress
by arriving on the scene soon thereafter and before substantial
o f the bystander is caused b y the contemporaneous sensory
based upon medical malpractice i n
208 Conn, at 392, 545 A . 2 d
change has occurred i n the victim's condition or location; (3)
1059, where the tort victi m was the plaintiffs mother.
the injury of the victim must be substantial, resulting i n his or
A f t e r Amodio,
her death or serious physical injury; and (4) the bystander's
Moloney
v. Conwy,
supra,
but before Moloney
California, i n Ochoa
v. Superior
was decided, however,
Court,
39 Cal.3d 159,
703 P.2d 1, 216 Cal.Rptr. 661 (1985), relaxed Dillon
's
contemporaneous sensory perception requirement i n the
context o f a medical malpractice case. I n Ochoa,
Moloney,
emotional injury must be serious, beyond that w h i c h would
be anticipated i n a disinterested witness and w h i c h is not the
result o f an abnormal response." Id., at 56, 156 A . 2 d 149.
as i n
the plaintiff observed the effects o f the medical
A f t e r Clohessy,
the Supreme Court rendered its opinion in
malpractice over a period o f time. The Supreme Court o f
Murillo
California concluded that the sudden occurrence requirement
823 A . 2 d 1202 (2003). I n Murillo,
v. Seymour
Ambulance
Assn., Inc., 264 Conn. 474,
is an unwarranted restriction on the Dillon
guidelines ...
to have been injured i n a f a l l after observing a medical
and that the contemporaneous perception o f the negligent
procedure performed on her sister. See id., at 476, 823 A . 2 d
the plaintiff claimed
act requirement for a medical malpractice case was satisfied
1202. The court affirmed the trial court's finding that the
when there is observation o f t h e defendant's conduct and the
defendants, an ambulance company, a hospital and their
child's injury and contemporaneous awareness the defendant's
respective employees, owed no duty to the plaintiff. See id.
conduct or lack thereof is causing harm to the child." (Citation
I n reaching this conclusion, the court analyzed "four factors
omitted; internal quotation marks omitted.) Id., at 37, 69
to be considered i n determining the extent o f a legal duty as
Cal.Rptr. 72, 441 P.2d912.
a matter o f public policy: (1) the normal expectations o f t h e
participants i n the activity under review; (2) the public policy
o f encouraging participation i n the activity, while weighing
3
^ÔT
the safety o f the participants; (3) the avoidance o f increased
5006536 (August 11,2008, Gilligan, J.); Meister v.
litigation; and (4) the decisions o f other jurisdictions." Id., at
Community
480, 823 A . 2 d 1202.
litigation docket at Tolland, Docket No. X07 C V 03 0082430
Memorial
Hospital,
Windham
Superior Court, complex
(April 27, 2004, Sferrazza, J.) (36 Conn. L . Rptr. 876).
I n regard to the first and second factors, the court relied upon
Moloney
i n its analysis. See id, at 480-81, 823 A . 2 d 1202.
Judges o f the Superior Court are also persuaded that because
"The reasonableness o f [the expectations o f the plaintiff,
Moloney
a bystander; her sister, the defendants' patient; and the
to the view that Moloney
defendants] is underscored by a decision i n which this court
See Calabrese
rejected a claim f o r negligent infliction o f emotional distress
judicial district o f Waterbury, Docket No . C V 09 5012012
by a plaintiff who had observed allegedly negligent medical
(June 30, 2009, Sheedy, J.) (48 Conn. L . Rptr. 119); Wales
treatment o f her mother ... I n Moloney,
the court commented
was cited favorably i n Murillo,
i t lends credence
was not overruled by
v. Connecticut
v. Yale New Haven Hospital,
Hospice,
Clohessy.
Inc., Superior Court,
supra, Superior Court, Docket
that medical judgments as to the appropriate treatment o f
No. C V 08 5025413; Seda v. Maxim Healthcare
a patient ought not to be influenced b y the concern that a
Superior Court, judicial district o f Hartford, Docket No . C V
Services,
visitor may become upset f r o m observing such treatment...
07 5010811 ( A p r i l 8, 2008, Elgo, J.); Estaba
v. Yale
New
The focus o f the concern o f medical care practitioners should
Haven Hospital,
be upon the patient and any diversion o f attention or resources
Docket No . C V 06 5005503 (January 10, 2008, Blawie, J.)
Superior Court, judicial district o f Fairfield,
to accommodate the sensitivities o f others is bound to detract
(44 Conn. L . Rptr. 774).
f r o m that devoted to patients." Id. Furthermore, "[a]s a matter
o f public policy, and as we previously stated i n
Moloney,
[1]
Despite this majority, the court, after a careful review o f
the law should encourage medical care providers, such as the
Moloney,
defendants, to devote their efforts to their patients, and not be
established a cause o f action f o r bystander emotional
Murillo
and Clohessy,
is persuaded that
Clohessy
obligated to divert their attention to the possible consequences
distress i n any context, so long as the p l a i n t i f f s allegations
to bystanders o f medical treatment o f the patient." (Citations
sufficiently satisfy the rale o f reasonable foreseeability. This
omitted.) Id, at 481, 823 A . 2 d 1202.
position has some support amongst decisions o f t h e Superior
Court. See Johnson
* 5 I n light o f Moloney,
Clohessy
and Murillo,
there exists
v. Edelstein,
Superior Court, judicial
district o f Hartford, Docket No . C V 04 0834151 (August 3 1 ,
"a split o f authority among the judges o f the Superior Court
2005, Hale, J.T.R.) (39 Conn. L . Rptr. 881); Desjardins
as to whether a claim for bystander emotional distress may
William Backus Hospital,
v.
be brought i n the context o f a medical malpractice action.
N e w London, Docket No . 562748 (April 25, 2003, Hurley,
One line o f cases follows the Supreme Court's decision i n
J.T.R.) (34 Conn. L . Rptr. 515); Pollard v. Norwalk
Moloney, holding that bystander emotional distress claims are
Superior Court, judicial district o f Fairfield, Docket N o . C V
Hospital,
not permitted i n medical malpractice actions ... Other judges
98 0355354 (February 18, 1999, Skolnick, J.);
o f t h e Superior Court have held that Clohessy permits claims
v. Desper,
for bystander emotional distress to apply to all situations,
DocketNo. 144050 (October 19,1998, Shortall, J.) (23 Conn.
including medical malpractice, provided that the rule o f
L . Rptr. 321); Rios v. Kozlowski,
reasonable foreseeability, as limited by four factual criteria,
district o f Hartford, Docket No . 576510 (August 24, 1998,
has been met." (Internal quotation marks omitted.)
Teller, J.) (22 Conn. L . Rptr. 564); Bond v. Kalla,
v. Boland,
Burnette
Superior Court, judicial district o f N e w London,
Superior Court, judicial
Superior
Court, judicial district o f N e w London, Docket No. 543295
(April 13, 1998, Koletsky, J.) (21 Conn. L . Rptr. 682).
Docket N o . C V 08 5009111 ( A p r i l 23, 2010, Martin, J.).
A n overwhelming majority o f decisions o f the Superior
Court conclude that Moloney
Blanchette
Superior Court, judicial district o f Waterbury,
is still good law, and that
*6
"Clohessy
has f i r m l y established a cause o f action
for bystander emotional distress i n Connecticut regardless
a cause o f action f o r
of whether the action arises f r o m medical malpractice ...
bystander emotional distress i n a medical malpractice case.
Connecticut now offers a remedy to any bystander i n any
Connecticut does not recognize
See Wales v. Yale New Haven
Hospital,
Superior Court,
context who can satisfy the four Clohessy
factors. M u c h is
judicial district o f New Haven, Docket N o . C V 08 5025413
made o f the fact that while Clohessy v. Bachelor
(June 22, 2009, Keegan, J.); Viagrande
case o f Strazza v. McKittrick
v. Rocco,
Superior
Court, judicial district o f N e w Britain, Docket No . C V 08
to overrule Moloney,
... the Clohessy
overruled the
court declined
although the Clohessy opinion discusses
4
^ÔU
Strazza and Moloney
i n the same context... However, i t was
simply not necessary to overrule Moloney because
holding is not inconsistent w i t h Clohessy
Moloney's
... [T]he trial court
found, and the Supreme Court upheld i n Moloney, theplaintiff
chooses not to read Moloney
as a blanket prohibition on all
bystander claims involving medical malpractice ... I n light
o f Clohessy,
this court recognizes Moloney
for disclosing
and analyzing the weaknesses o f a bystander claim f o r
did not allege that she suffered an injury contemporaneous
emotional distress under the precise circumstances o f that
w i t h her perception o f the alleged medical malpractice o f the
case. However, i f there are circumstances i n the medical
defendants ... I t is clear that even under the Clohessy
malpractice context where a plaintiff can allege and prove
the plaintiff i n Moloney
test,
would have failed to state a valid
all four Clohessy
criteria, then recovery should not be
claim for bystander emotional distress." (Citations omitted;
denied." (Citation omitted.) Id. The court agrees w i t h this
internal quotation marks omitted.) Drew v. William
analysis and additionally, finds that Murillo
Hospital,
Backus
Superior Court, judicial district o f New London,
Docket No. 550724 (September 30, 1999, Hurley, J.) (25
Conn. L . Rptr. 534, 536), a f f d, 77 Conn.App. 645, 825 A . 2 d
810, cert, granted, 265 Conn. 909, 831 A . 2 d 249 (2003).
1
to the present case. I n Murillo,
is inapposite
the plaintiff did not allege
medical negligence on the part o f the defendants, rather she
alleged that her observation o f a medical procedure performed
on her sister caused her to faint and sustain injuries.
1
* 7 Given the court's view that Clohessy established a cause
The Appellate Court in Drew noted: "Having resolved
o f action f o r bystander emotional distress i n any context, the
that claim as we did, we, like the trial court, have
court must next determine whether the facts alleged i n the
no occasion on which to opine as to whether a claim
present case satisfy the four-part test enunciated i n Clohessy.
for bystander emotional distress based on medical
malpractice is legally cognizable." 77 Conn.App. 670,
n. 9. Furthermore, the appeal to the Supreme Court was
withdrawn on December 22, 2003.
The trial court i n Drew
B
continued: "This court recognizes
how difficult it is for a plaintiff to successfully allege and
Plaintiffs
prove a cause o f action for bystander emotional distress
in the medical malpractice context. As the Clohessy
Court
Allegations
Under the Clohessy
Test
The defendant contends that the plaintiff fails to satisfy
states, 'there generally is no significant observable traumatic
the second element o f the Clohessy
event for a p l a i n t i f f to contemporaneously observe and
injury be caused b y the contemporaneous sensory perception
thereby suffer emotional distress.' ... However, i t is not hard
o f the event
to envision particular instances where a plaintiff, who is
Supreme Court has stated that "[mjerely observing the
closely related to a medical patient, actually observes an
consequences o f the defendant's negligence towards another
act o f medical malpractice and contemporaneously suffers
person without perceiving the actual negligent behavior,
emotional distress as a result. As an extreme example,
however, is insufficient to maintain a cause o f action f o r
test, that the emotional
or conduct that causes the injury. The
suppose a woman accompanies her husband i n an emergency
emotional distress to a bystander." Amodio
v.
Cunningham,
room and watches as the doctors attempt to apply a heart
supra, 182 Conn, at 90, 438 A . 2 d 6. In Amodio,
the plaintiff
defibrillator i n order to prevent the patient f r o m dying o f
mother contacted the defendant doctors when her daughter
a heart attack. Negligently, however, the doctors misapply
began having breathing difficulty. See id., at 83, 438 A . 2 d 6.
the defibrillator and, consequently, electrocute and k i l l the
The defendants prescribed medication, and when the child's
patient. I f the plaintiff has observed this entire tragic episode,
condition worsened, they examined, but negligently released
and contemporaneously suffers serious emotional distress,
her without further treatment. Thereafter, the daughter's heart
what good reason is there f o r denying the plaintiff recovery
stopped during an episode at home during which mother had
for her emotional distress?" Id, at 537, 675 A . 2 d 852.
to administer mouth-to-mouth resuscitation. The child was
rushed to the hospital where, two days later, she died after
"During the pre-Clohessy
era, i t is accepted that the plaintiff
i n the above situation would have no remedy for her
the plaintiff decided to discontinue extraordinary life-support
methods. See id.
emotional distress. Some trial courts still believe, however,
that even after Clohessy there would not be a valid claim f o r
The mother brought a medical malpractice complaint against
bystander emotional distress i n the above situation simply
the defendants, i n which she alleged that she suffered
because the context entails medical malpractice. This court
emotional distress as a result o f witnessing her daughter's
5
^ÔV
deterioration and death. See id., at 84, 438 A . 2 d 6. The trial
o f stimulating emotional disturbances upon the part o f the
court granted the defendants' motion to strike this count and
visitors than because o f the merits o f the complaint. Medical
the Supreme Court affirmed. The Supreme Court reasoned
judgments as to the appropriate treatment o f a patient ought
that the allegations o f the complaint indicated that the injuries
not to be influenced by the concern that a visitor may become
suffered by the child became manifest a considerable period
upset f r o m observing such treatment or f r o m the failure to
of time after the alleged negligence o f the doctors occurred.
f o l l o w some notion o f t h e visitor as to care o f the patient. The
focus o f the concern o f medical care practitioners should be
See id., at 91-93,438 A . 2 d 6 .
upon the patient and any diversion o f attention or resources
I n Moloney
v. Conroy, supra, 208 Conn, at 402, 545 A . 2 d
to accommodate the sensitivities o f others is bound to detract
1059, the Supreme Court maintained this position given that
f r o m that devoted to patients ... Obviously, i f the attention o f
the facts presented were strikingly similar to those before the
medical practitioners is properly called to some deficiency i n
court in Amodio. I n Moloney, the plaintiff, who lived w i t h her
the treatment o f a patient by anyone, that circumstance may
mother until her mother's death, was present at her bedside
be significant i n deciding whether there has been malpractice.
as her mother was being treated by the defendants. See id.,
It is, however, the consequences to the patient, and not to
at 394, 545 A . 2 d 1059. Following an operation, the plaintiff
other persons, o f deviations f r o m the appropriate standard o f
observed her mother's health deteriorate under the treatment
medical care that should be the central concern o f medical
o f the defendants and culminate i n death. The plaintiff alleged
practitioners. I n the case before us, i f t h e defendants should
that the suffering and death o f the mother were caused by
have responded to the various requests the plaintiff alleges
the negligence o f the defendants i n failing to care for her
she made about her mother's condition, they should be held
in a reasonably competent manner, including their failure to
liable for the consequences o f their neglect to the patient
heed several requests o f the plaintiff that they investigate
or her estate rather than to the plaintiff. I t is a fundamental
various symptoms she had observed relating to her mother's
assumption o f jurisprudence that rules o f law have an impact
deteriorating condition. See id.
on the manner i n w h i c h society conducts its affairs. We are
persuaded that the recognition o f a cause o f action under
In rejecting the plaintiffs emotional distress claim, the
the circumstances
court articulated several public policy concerns. "To allow
consequences detrimental to the community as a whole that
pleaded
in the complaint
would have
recovery by one, like the plaintiff, who has been more
outweigh the benefit a f e w hypersensitive individuals would
or less constantly at the bedside o f the malpractice victim
be likely to derive f r o m permitting such an action to proceed."
during the period o f treatment is likely to cause hospitals
Id., at 403, 545 A . 2 d 1059. (Emphasis added.)
and other medical treatment facilities to curtail substantially
the extent o f visitation of patients that is presently permitted.
Subsequently, the Superior Court i n Desjardins
Such a response b y providers o f medical care to the risk o f
Backus
liability to visitors whose sensitivity and relationship to the
examined the contemporaneous sensory perception element
Hospital,
supra,
v.
William
34 Conn. L . Rptr. at 518, closely
patient may result i n emotional disturbances f r o m observing
o f the Clohessy
treatment o f loved ones that they view as improper would
require a plaintiff to make two allegations i n order to
test. "[TJhis court interprets Clohessy
to
seem inevitable i f such claims were to become more frequent.
show contemporaneous sensory perception o f the event or
The restriction o f current liberal practices w i t h respect to
conduct which causes the injury to the third party ... First,
patient visitation i n order to reduce the incidence o f bystander
the bystander must allege actual perception o f the distinct
emotional disturbance claims would be a regrettable social
event or conduct that caused the immediate severe or life
consequence o f enlarging the right to recover for emotional
threatening harm to the third party. Second, the bystander
disturbances based upon the impact o f medical malpractice
must allege that this observation immediately caused them to
upon bystanders." (Internal quotation marks omitted.) Id., at
suffer severe emotional distress." Id.; see also Vanase v. State,
Superior Court, judicial district o f New London, Docket N o .
402-03, 545 A . 2 d 1059.
C V 00 0554764 (February 1,2001, Hurley, J.T.R.) (28 Conn.
* 8 The court continued: "Another undesirable sequel that
L . Rptr. 665).
is likely to follow upon our creation o f a duty to a patient's
visitors or relatives is that medical personnel may feel
The Desjardins
obligated to respond to the usually uninformed complaints
meet the concerns o f the Clohessy
court continued: "[TJhis test is sufficient to
o f visitors concerning the treatment o f patients more for fear
etiology o f emotional injuries because i t allows a bystander
WesllawNexf © 2015 T h o m s o n Reuters. No claim to original U.S. G o v e r n m e n t W o r k s .
^^PM
court w i t h respect to the
6
to recover for emotional distress, i n a medical malpractice
The plaintiff observed the defendant's agents and employees
action, only where there is a sudden event or act o f medical
as they unwrapped Julian's hand and discovered that the
malpractice which injures a third party. This limitation also
hand was cold, mottled purple, swollen and pulseless. A s a
allows a trier o f fact to determine whether there is an
result, Julian required emergency surgery, which the plaintiff
emotional injury inflicted on a bystander that is severe enough
consented to and consequently, watched as he was taken into
to cause continuing damage to them and, yet, is unrelated to
the operating room. Subsequent surgeries during Julian's i n -
the overall grief, loss, or pain that the bystander may feel
patient stay at the hospital resulted i n the partial amputation
solely because they are related to the victi m and watching the
o f his hand.
victim suffer i n a medical environment." (Citations omitted;
internal quotation marks omitted.) Id., at 518, 675 A . 2 d 852.
These allegations demonstrate that the plaintiff did not
witness the alleged act o f medical negligence, the improper
* 9 I n Desjardins,
the plaintiff, the decedent's w i f e , alleged
placement o f the intravenous line into her son's left arm.
that her husband died a week after falling down a flight
Rather, she witnessed only the effects o f this alleged
o f stairs due to the medical malpractice o f the defendants.
negligence, including the discoloration o f Julian's hand,
See id., at 515. A f t e r falling down the stairs, the decedent
which were discovered days after the intravenous line was
was transported via ambulance to the hospital where he was
put in. There is simply no precedent for the court to conclude
treated i n the emergency room and admitted w i t h a diagnosis
that the p l a i n t i f f s allegations are legally sufficient to support
of bifrontal subdural hematoma, right temporal hematoma
her claim for bystander emotional distress. Connecticut courts
and subarachnoid hemorrhage. During the course o f his
have refused to expand this cause o f action to situations where
week long stay at the hospital, the plaintiff alleged that the
the plaintiff witnesses the deterioration o f the patient over a
defendants were negligent and careless by failing to perform
period o f time or observes the effects o f the alleged medical
adequate diagnostic testing, including intracranial pressure
negligence some time after the negligent act has occurred. The
monitoring, to properly assess and treat the decedent's
court is o f the opinion that recovery for bystander emotional
condition. Id.
distress i n the medical malpractice context is limited to
circumstances such as those described by the trial court i n
Based upon
these
allegations,
the
court
granted
the
Drew, where a close relative actually witnesses a significant
defendants' motion to strike the p l a i n t i f f s emotional distress
event or act o f medical negligence and its effect upon
claim. "[T]he plaintiff has failed to allege a significant event
the patient, and as a result, contemporaneously experiences
or conduct leading to the p l a i n t i f f s immediate emotional
severe emotional distress. Additionally, the court's decision
distress, and, thus, the plaintiff has failed to state a cause
is supported by strong public policy concerns, including
of action for negligent infliction o f emotional distress. The
society's interest i n liberal patient visitation and i n sound,
plaintiff has not sufficiently alleged that her emotional injury
undistracted medical judgment o f healthcare professionals.
was caused b y the contemporaneous sensory perception o f
the event or conduct that caused the injury as required by the
*10 I n sum, the court finds that the Clohessy
test applies
Nor has she sufficiently alleged
to the p l a i n t i f f s claim o f bystander emotional distress, which
that she suffered immediate emotional distress as a result
arises i n the context of a medical malpractice action. The court
second prong o f Clohessy.
o f witnessing a distinct, insular act o f negligence by the
finds, however, that the p l a i n t i f f s allegations f a i l to satisfy
defendant." Id., at 518, 675 A . 2 d 852.
the Clohessy test because she did not observe the actual act o f
medical negligence. I n other words, as set forth i n
[2]
I n the present case, the p l a i n t i f f s revised complaint, filed
August 3, 2009, alleges that she arrived at the hospital w i t h
Clohessy,
"the plaintiff has failed to allege that her emotional injury
was caused b y the contemporaneous sensory perception o f t h e
her son on M a y 14, 2007. From M a y 14 until M a y 20, Julian
event or conduct that cause[d] the injury." Clohessy,
received medicine and nutrition intravenously. On M a y 18,
237 Conn, at 56, 675 A . 2 d 852. The plaintiff i n this case
supra,
the plaintiff alleges that an intravenous line was negligently
"[mjerely observe[d] the consequences o f the defendant's
put into Julian's left hand. On the evening o f M a y 19 through
[alleged] negligence towards [Julian] without perceiving the
the morning o f M a y 20, the plaintiff was physically present
actual negligent behavior, [which] is insufficient to maintain
at her son's bedside. On the morning o f M a y 20, the plaintiff
a cause o f action for emotional distress to a bystander." Id.,
observed that her son's left thumb and index finger had turned
at 36-37, 675 A . 2 d 852. (quoting Amodio
blue and called the attention to the defendant's nursing staff.
supra.)
v.
Cunningham,
7
^^PN
AH Citations
Conclusion
Not Reported i n A.2d, 2010 W L 3786861
For all o f the foregoing reasons, the defendant's motion to
strike count three is hereby granted.
End of Document
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
V f e l l a w N e x t © 2 0 1 5 T h o m s o n Reuters. No claim to original U.S. G o v e r n m e n t W o r k s .
^^PO
H u b e r v. B a k e w e l l , Not R e p o r t e d in A . 3 d (2015)
60 Conn. L. Rptr. 441
1, 2012, the Probate Court, per Landgrebe, J., granted the
petition and appointed Bakewell, who was then serving as the
2015 W L 3973881
decedent's accountant and financial advisor, as conservator.
O n l y t h e W e s t l a w c i t a t i o n is c u r r e n t l y available.
In its decree o f appointment, the Probate conferred upon
UNPUBLISHED OPINION. CHECK
Bakewell the authority to "[mjanage all o f the conserved
COURT RULES BEFORE CITING.
person's estate" and to "[cjollect all o f the conserved person's
income and assets, pay the conserved person's bills, expenses
S u p e r i o r C o u r t o f Connecticut.
and debts, and collect debts due." (Defendant's Ex. A . ) The
Judicial District of Danbury.
plaintiff alleges that during Bakewell's service as conservator
o f her father's estate, the defendants, acting together or i n
Sarah E . H U B E R , Conservator o f
concert, committed numerous acts o f malfeasance which led
t h e Estate of Lawrence S m i t h et a l .
to the loss o f a considerable number o f items o f personal
v.
property belonging to the decedent. Certain o f these items,
including a collection o f rare coins and a collection o f Native
Cheryl B A K E W E L L et al.
American artifacts, had great historic and intrinsic value;
N o . DBDCV146015023S.
I
other items which were lost had equally great sentimental
J u n e 3, 2015.
value to her father and other f a m i l y members, including a
Attorneys and L a w Firms
Cohen
&
W o l f , PC,
Danbury, f o r Sarah E.
jewelry box containing the remains o f the decedent's w i f e .
Huber,
The plaintiff specifically alleges that, in the summer o f 2012,
Bakewell retained the services o f the Larmores to hold an
Conservator o f the Estate o f Lawrence Smith et al.
estate sale at the decedent's former residence. The p l a i n t i f f
Murolo & Murolo, L L C , Cheshire, Deakin Edwards & Clark,
L L P , Woodbridge, for Cheryl Bakewell et al.
alleges that the Larmores, among other things: (1) failed to
conduct the estate sale i n a professional manner so as to
realize the highest and best possible result f r o m the sale;
(2) sold certain items off-site after the sale without keeping
A N T H O N Y D . T R U G L I A , JR., J.
accurate records o f the sale o f these items; (3) donated
certain o f the decedent's items to charity, but failed to keep
FACTS
an accurate record o f the donations; (4) sold certain items
*1 The plaintiff, Sarah Huber, as executor o f the estate
o f her
deceased father, brings this action to
recover
compensatory and punitive damages f r o m the defendants,
Cheryl Bakewell, the former conservator o f the decedent's
estate and person, and Merton and D a w n Larmore (the
Larmores). B y amended complaint dated September 5, 2014
(# 108.00), the plaintiff alleges numerous causes o f action
against the defendants sounding i n negligence, breach o f
contract, breach o f fiduciary duty, conversion, fraud, statutory
theft, negligent infliction o f emotional distress, and violations
o f t h e Connecticut Unfair Trade Practices A c t (CUTPA). The
plaintiff also seeks by way o f a separate count a complete
inventory and accounting o f all personal property formerly
owned by the decedent and entrusted to the defendants i n their
fiduciary capacities.
I n her amended complaint, the plaintiff makes the following
allegations. Prior to his death on A p r i l 23,2014, the decedent,
Lawrence Smith, f i l e d a voluntary petition for appointment o f
a conservator o f his estate and person w i t h the Probate Court
to themselves f o r less than fair market value; (5) failed
to separate items o f personal property that the decedent
and his children, through a mutual distribution agreement
approved by the Probate Court, had agreed would remain w i t h
the f a m i l y members; (6) converted some o f the decedent's
personal items to themselves without paying f o r them at all;
and (7) wrongfully retained proceeds f r o m the sale o f the
decedent's items f o r themselves. I n her claims for relief, the
plaintiff requests an order f r o m the court compelling the
Larmores to provide " [ f j u l l accountings ... concerning the
Sale and a judgment f o r the amounts found due on such
accountings." The p l a i n t i f f also claims that the Larmores
are liable to her father's estate f o r compensatory damages
for breach o f their fiduciary duties, negligence, negligent
infliction o f emotional distress and C U T P A violations.
* 2 The Larmores now move to strike the eleventh count o f
the amended complaint w h i c h alleges a claim f o r negligent
infliction o f emotional distress on the ground that Connecticut
jurisprudence does not recognize this cause o f action i n
for the District o f Housatonic (Probate Court). On February
WestlawNeXt" © 2015 T h o m s o n Reuters. No claim to original U.S. G o v e r n m e n t W o r k s .
^^PP
1
circumstances arising f r o m damage to or loss o f personal
distress and that distress, i f it were caused, might result i n
property.
illness or bodily harm." (Internal quotation marks omitted.)
Parsons
v. United Technologies
Corp., 243 Conn. 66, 88,
700 A . 2 d 655 (1997); see also Restatement (Third) o f Torts:
Phys. & Emot. Harm § 47 (2012) ( " A n actor whose negligent
DISCUSSION
conduct causes serious emotional harm to another is subject
The law on motions to strike made pursuant to Practice Book
to liability to the other i f the conduct: (a) places the other
§§ 10-39 is well-settled. "The purpose o f a motion to strike
in danger o f immediate bodily harm and the emotional harm
is to contest ... the legal sufficiency o f the allegations o f
results f r o m the danger; or (b) occurs in the course o f specified
any complaint ... to state a claim upon w h i c h relief can be
categories o f activities, undertakings, or relationships i n
granted ... A motion to strike challenges the legal sufficiency
which negligent conduct is especially likely to cause serious
o f a pleading, and, consequently, requires no factual findings
emotional harm").
by the trial court ... We take the facts to be those alleged
in the complaint ... and we construe the complaint i n the
*3
" I n negligent infliction o f emotional distress claims,
manner most favorable to sustaining its legal sufficiency ...
unlike general negligence claims, the foreseeability o f the
Thus, [ i ] f facts provable i n the complaint w o u l d support a
precise nature o f t h e harm to be anticipated [is] a prerequisite
cause o f action, the motion to strike must be denied." (Internal
to recovery even where a breach o f duty might otherwise be
quotation marks omitted.) Fort Trumbull
v. Alves,
Conservancy,
LLC
262 Conn. 480, 498, 815 A . 2 d 1188 (2003). " A
motion to strike is properly granted i f the complaint alleges
found ..." (Internal quotation marks omitted.) Perodeau
Hartford,
v.
259 Conn. 729, 754, 792 (2002). Therefore, " [ i ] n
order to state a claim f o r negligent infliction o f emotional
mere conclusions o f law that are unsupported by the facts
distress, the plaintiff must plead that the actor should have
alleged." Novametrix
foreseen that her behavior w o u l d likely cause harm o f a
Medical
Systems,
Inc. v. BOC
Group,
specific nature, i.e., o f emotional distress likely to lead to
Inc., 224 Conn. 210, 215, 618 A . 2 d 25 (1992).
illness or bodily harm." Olson v. Bristol-Burlington
" I t is fundamental that i n determining the sufficiency o f
District,
a complaint challenged b y a defendant's motion to strike,
Conn. 914, 870 A . 2 d 1083 (2005).
Health
87 Conn.App. 1, 5, 863 A . 2 d 748, cert, granted, 273
all well-pleaded facts and those necessarily implied f r o m
the allegations are taken as admitted." (Internal quotation
The Larmores rely on the recent case o f Goldstein
v. Rapp,
76 Conn.App.
Superior Court, judicial district o f N e w London, Docket
296, 299-300, 819 A . 2 d 289 (2003). "The role o f t h e trial
N o . CV-10^1010224-S (October 15, 2010, Martin, J.) (50
marks omitted.) Doe v. Board
of Education,
court [on ruling on a motion to strike is] to examine the
Conn. L . Rptr. 779), i n support o f their motion. I n
Goldstein,
[complaint], construed i n favor o f t h e plaintiffs, to determine
the plaintiffs were lessees o f an apartment that became the
whether the [pleading party has] stated a legally sufficient
subject o f a foreclosure action. The plaintiffs alleged that
cause o f action." (Internal quotation marks omitted.) Dodd v.
while the foreclosure action was pending, and thus while
Middlesex
they still had the right to possession o f the apartment, the
Mutual Assurance
Co., 242 Conn. 375, 378, 698
A.2d 859 (1997).
defendant mortgagee and its agents locked them out o f the
"[T]he elements [ o f a claim] for negligent infliction o f
personal property. A m o n g the items removed were family
emotional distress are: (1) the defendant's conduct created an
photographs, mementos, and a jar containing the cremated
unreasonable risk o f causing the plaintiff emotional distress;
remains o f the plaintiffs' father. The plaintiffs asserted a
(2) the p l a i n t i f f s distress was foreseeable; (3) the emotional
number o f causes o f action against the defendants, including
distress was severe enough that i t might result i n illness
a count for negligent infliction o f emotional distress. The
or bodily harm; and (4) the defendant's conduct was the
defendants moved to strike this count on the ground that
apartment and removed or caused to be removed the plaintiffs'
cause o f the p l a i n t i f f s distress." (Internal quotation marks
Connecticut does not recognize a cause o f action for negligent
omitted.) Morneau
infliction o f emotional distress arising f r o m the damage or
v. State,
150 Conn.App. 237, 251, 90
A . 3 d 1003, cert, denied, 312 Conn. 926, 95 A . 3 d 522 (2014).
destruction o f personal property. The court i n
"[TJn order to state such a claim, the plaintiff has the burden
noted that "every Superior Court case that has addressed
Goldstein
o f pleading that the defendant should have realized that its
negligent infliction o f emotional distress claims where the
conduct involved an unreasonable risk o f causing emotional
only damage was to property ... has held that Connecticut
2
^^PQ
courts do not recognize a cause o f action for negligent
family members o f the deceased, [the plaintiffs] have also
infliction o f emotional distress based solely on damage to
pleaded that the corpse was damaged while i n the care
property ... These courts have reasoned that where the injury
and custody o f the defendant by conduct o f the defendant;
alleged is solely to property, it is not foreseeable to the
that this conduct created an unreasonable and foreseeable
defendant that its conduct could have caused emotional
risk o f causing them emotional distress severe enough to
distress, and that distress, i f i t were caused, might result
result i n illness or physical harm; and, as a result, they, i n
i n illness or bodily harm." Id., at 781; see also Duffy
Wallingford,
v.
49 Conn.Sup. 109,121-23,862 A . 2 d 890 (2004)
fact, suffered emotional distress." Ginsberg
Memorial
Hospital,
v.
Manchester
supra, 49 Conn. L . Rptr. at 344-45.
(denying a motion to strike claim o f negligent infliction o f
emotional distress where plaintiff alleged misrepresentations
*4 I n Reich,
the plaintiff brought a claim for negligent
infliction o f emotional distress against a funeral home and
as to condition o f real property).
its employee for their improper handling o f a portion o f her
I n response, the plaintiff cites Ginsberg
Manchester
deceased husband's cremated remains, including failing to
return the remains to her until more than four years after
Hartford, Docket No. CV-09-5030482-S (February 2, 2010,
her husband's death. The remains had been kept i n a closet
Memorial
Hospital,
v.
Spencer,
at the funeral home where the remains o f other deceased
Superior Court, judicial district o f Hartford, Docket No. C V -
persons had been stored. When the remains were discovered,
07-5012682-S (December 10, 2010, Peck, J.). The plaintiffs
the defendant sent the p l a i n t i f f a letter informing her that she
Peck, J.) (49 Conn. L . Rptr. 341), and Reich
v.
were the surviving spouse and heirs o f the
had one month to make arrangements to retrieve them. The
decedent whose remains were placed i n the custody and
notification letter also advised the plaintiff that i f she failed to
control o f the defendants, a hospital and a funeral home. The
retrieve the rest o f her husband's remains by the date set forth
in Ginsberg
plaintiffs alleged that the decedent's corpse was " 'damaged'
in the letter, the remains would be relocated to a crypt where
by a gash on the forehead, bruised eyes and a broken nose."
they could be retrieved f o r an additional fee. The defendants
The plaintiffs brought a number o f causes o f action against
f i l e d a motion for summary judgment, arguing that there was
the defendants, including claims o f intentional and negligent
no evidence that the funeral home's employee knew or should
infliction o f emotional distress. The defendants moved to
have known that there was a second container o f remains until
strike all counts o f the complaint, arguing that Connecticut
four years after the p l a i n t i f f s husband's death. The plaintiff
law did not recognize causes o f action for damage to or
responded that the defendants "either knew or should have
"interference w i t h " a corpse. The court granted the motion as
known that losing a portion o f the remains and returning
to the claim for intentional infliction o f emotional distress,
them four years later, possibly mixed w i t h the remains o f
but denied the motion as to negligent infliction o f emotional
another person, and informing her by way o f an insensitive
distress. The court analyzed the claim f o r negligent infliction
letter involved an unreasonable risk o f emotional distress."
o f emotional distress as follows: "Here, [the plaintiffs]
The court denied the motion, finding that the defendants owed
have sufficiently pleaded a cause o f action for negligent
a duty o f care to the plaintiff to properly care for her husband's
infliction o f emotional distress. First, as discussed above,
remains and that there were unresolved issues o f fact as to
considerations o f public health require family members to
the defendant's liability. Reich v. Spencer,
entrust the hospital with the custody o f their loved one's
Court, Docket N o . CV-07-5012682-S. Connecticut courts
corpse, until proper arrangements can be made. I t is logical to
have, under Ginsberg
conclude that parties charged w i t h the custody and control o f
a special relationship exists between persons charged w i t h
the remains o f a deceased know or reasonably should know
custody and control o f a deceased person's remains thereby
supra,
Superior
and Reich, therefore, recognized that
that the surviving relatives are emotionally vulnerable. As
creating a duty o f care to f a m i l y members w i t h respect to
such, it is foreseeable that the family members would be
the handling o f those remains whose breach may f o r m the
harmed i f they were subjected to the sight o f the mutilated
basis for a cause o f action for negligent infliction of emotional
corpse o f the deceased, and such mutilation was caused by the
distress where the remains have been mishandled.
hospital. Further, on the basis o f public policy, responsibility
for negligent conduct on the part o f the hospital i n failing to
The plaintiff further argues that the facts o f this case allege
safeguard the bodily integrity o f the decedent's corpse should
a fiduciary relationship between the plaintiffs decedent
be extended to the immediate family. Having established
and the Larmores. According to the plaintiff, by accepting
that a funeral home owes a duty to them as immediate
the responsibility o f handling the decedent's valuable and
V ' f e l l a w N e x t © 2015 T h o m s o n Reuters. No claim to original U.S. G o v e r n m e n t W o r k s .
^^PR
3
irreplaceable personal property under the circumstances, the
Larmores owed the decedent a fiduciary duty o f loyalty and
a duty to supervise properly the safekeeping and sale o f
the personal property entrusted to their care. " [ A ] fiduciary
or confidential relationship is characterized by a unique
degree o f trust and confidence between the parties, one o f
whom has superior knowledge, skill or expertise and is
under a duty to represent the interests o f another ... The
superior position o f the fiduciary or dominant party affords
h i m great opportunity for abuse o f the confidence reposed
in h i m . " (Internal quotation marks omitted.) Falls
Church
Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84,
108, 912 A . 2 d 1019 (2007). Connecticut courts have, i n some
cases, recognized a cause o f action for negligent infliction o f
emotional distress arising f r o m the breach o f a fiduciary duty.
See, e.g., Tumosav.
Curtis, Superior Court, judicial district o f
Hartford, Complex Litigation Docket, Docket No. X 0 7 - C V 08-5023 851-S (August 25,2009, Berger, J.) (denying motion
to strike negligent infliction o f emotional distress count based
not only the remains o f the decedent's deceased w i f e , but
also items o f great historic and sentimental value to h i m
and to other f a m i l y members. The Larmores were charged
w i t h segregating items to be set aside for family members
in accordance w i t h the mutual distribution agreement and
w i t h conducting the sale o f the decedent's personal property
w i t h a view toward maximizing the benefit o f the sale for the
decedent. The Larmores' failure to discharge their obligations
properly, the plaintiff alleges, caused the p l a i n t i f f s decedent
to suffer illness or bodily harm that the Larmores knew or
should have know n would result f r o m failing to discharge
those obligations properly. Where, as i n the present case, a
defendant is charged w i t h fiduciary responsibilities for the
safekeeping and proper disposition o f personal property o f
great intrinsic or sentimental value, and where i t is reasonably
foreseeable that negligent handling o f that personal property
w i l l cause emotional distress severe enough to cause illness or
bodily injury, a p l a i n t i f f has alleged a legally sufficient cause
o f action f o r negligent infliction o f emotional distress.
on allegations o f lack o f due diligence by broker i n advising
plaintiffs i n purchase of business venture). Thus, the plaintiff
distinguishes Goldstein
on the ground that the lender and
CONCLUSION
property manager i n that case who disposed o f the plaintiffs
irreplaceable personal items had no fiduciary relationship
For the reasons set forth above, the Larmores' motion to strike
w i t h the plaintiffs and, therefore, did not owe the plaintiff
count eleven o f the p l a i n t i f f s amended complaint, # 119.00,
the duty o f care owed by a fiduciary. Here, i n contrast,
is denied.
the defendants' relationship and employment responsibilities
imposed a heightened duty o f care to the plaintiffs decedent.
* 5 The plaintiff alleges that the Larmores owed the decedent
the obligation to use due care i n their safekeeping o f the
All Citations
N o t Reported i n A.3d, 2015 W L 3973881, 60 Conn. L . Rptr.
441
decedent's personal property. That personal property included
End of Document
© 2015 Thomson Reuters, No claim to original U.S. Government Works.
4
^^PS
§ 19a-570. D e f i n i t i o n s , C T S T § 19a-570
Connecticut General Statutes A n n o t a t e d
T i t l e 19a. P u b l i c H e a l t h a n d W e l l - B e i n g (Refs & A n n o s )
Chapter 368W. R e m o v a l o f L i f e S u p p o r t Systems (Refs & A n n o s )
C.G.S.A. § l9a-570
§ 193-570. D e f i n i t i o n s
Effective: October 1, 2 0 0 7
Currentness
For purposes o f this section and sections 19a-571 to 19a-580c, inclusive:
(1) "Advance health care directive" or "advance directive" means a writing executed i n accordance w i t h the provisions o f this
chapter, including, but not limited to, a living w i l l , or an appointment o f health care representative, or both;
(2) "Appointment o f health care representative" means a document executed i n accordance w i t h section 19a-575a or 19a-577
that appoints a health care representative to make health care decisions for the declarant i n the event the declarant becomes
incapacitated;
(3) "Attending physician" means the physician selected by, or assigned to, the patient, who has primary responsibility for the
treatment and care o f the patient;
(4) "Beneficial medical treatment" includes the use of medically appropriate treatment, including surgery, treatment, medication
and the utilization o f artificial technology to sustain life;
(5) "Health care representative" means the individual appointed by a declarant pursuant to an appointment o f health care
representative for the purpose o f making health care decisions on behalf o f the declarant;
(6) "Incapacitated" means being unable to understand and appreciate the nature and consequences o f health care decisions,
including the benefits and disadvantages o f such treatment, and to reach and communicate an informed decision regarding the
treatment;
(7) " L i f e support system" means any medical procedure or intervention which, when applied to an individual, would serve only
to postpone the moment o f death or maintain the individual i n a state of permanent unconsciousness, including, but not limited
to, mechanical or electronic devices, including artificial means of providing nutrition or hydration;
(8) " L i v i n g w i l l " means a written statement i n compliance w i t h section 19a-575a, containing a declarant's wishes concerning
any aspect o f his or her health care, including the withholding or withdrawal o f life support systems;
WesllaV'/Nexf © 2015 T h o m s o n Reuters. No claim to original U.S. G o v e r n m e n t W o r k s .
^^PT
1
§ 19a-570. D e f i n i t i o n s , C T S T § 19a-570
(9) "Next o f k i n " means any member o f the following classes o f persons, i n the order o f priority listed: ( A ) The spouse o f t h e
patient; (B) an adult son or daughter o f the patient; (C) either parent o f the patient; (D) an adult brother or sister o f the patient;
and (E) a grandparent o f the patient;
(10) "Permanently unconscious" means an irreversible condition i n which the individual is at no time aware o f himself or
herself or the environment and shows no behavioral response to the environment and includes permanent coma and persistent
vegetative state;
(11) "Terminal condition" means the final stage o f an incurable or irreversible medical condition which, without the
administration o f a life support system, w i l l result i n death w i t h i n a relatively short time period, i n the opinion o f t h e attending
physician.
Credits
(1985, P.A. 85-606, § 1; 1991, P.A. 91-283, § 1; 1993, P.A. 93-407, § 3; 2006, P.A. 06-195, § 63; 2007, P.A. 07-252, § 18.)
Notes o f Decisions (1)
C. G. S. A . § 19a-570, CT ST § 19a-570
The statutes and Constitution are current w i t h enactments f r o m the 2015 Regular Session and the June Special Session.
End of Document
V'fetlawNext © 2015 T h o m s o n Reuters. No claim to original U.S. G o v e r n m e n t W o r k s .
^^PU
2
§ 1 9 a - 5 7 1 . Liability re r e m o v a l of life s u p p o r t s y s t e m of..., C T S T § 19a-571
C o n n e c t i c u t General Statutes A n n o t a t e d
T i t l e 19a. Public H e a l t h a n d W e l l - B e i n g (Refs & A n n o s )
C.G.S.A. § iga-571
§ 193-571. L i a b i l i t y re r e m o v a l o f l i f e s u p p o r t system o f incapacitated p a t i e n t . C o n s i d e r a t i o n of wishes o f p a t i e n t
Currentness
(a) Subject to the provisions o f subsection (c) o f this section, any physician licensed under chapter 370
1
or any licensed medical
facility who or which withholds, removes or causes the removal o f a life support system o f an incapacitated patient shall not
be liable for damages i n any civil action or subject to prosecution i n any criminal proceeding f o r such withholding or removal,
provided (1) the decision to withhold or remove such life support system is based on the best medical judgment o f t h e attending
physician i n accordance w i t h the usual and customary standards o f medical practice; (2) the attending physician deems the
patient to be i n a terminal condition or, i n consultation w i t h a physician qualified to make a neurological diagnosis who has
examined the patient, deems the patient to be permanently unconscious; and (3) the attending physician has considered the
patient's wishes concerning the withholding or withdrawal o f life support systems. I n the determination o f the wishes o f the
patient, the attending physician shall consider the wishes as expressed b y a document executed i n accordance w i t h sections
19a-575 and 19a-575a, i f any such document is presented to, or i n the possession of, the attending physician at the time the
decision to withhold or terminate a life support system is made. I f the wishes o f t h e patient have not been expressed i n a living
w i l l the attending physician shall determine the wishes o f the patient by consulting any statement made b y the patient directly
to the attending physician and, i f available, the patient's health care representative, the patient's next o f kin, the patient's legal
guardian or conservator, i f any, any person designated b y the patient i n accordance w i t h section l-56r and any other person to
whom the patient has communicated his wishes, i f the attending physician has knowledge o f such person. A l l persons acting on
behalf o f the patient shall act i n good faith. I f the attending physician does not deem the incapacitated patient to be i n a terminal
condition or permanently unconscious, beneficial medical treatment including nutrition and hydration must be provided.
(b) A physician qualified to make a neurological diagnosis who is consulted by the attending physician pursuant to subdivision
(2) o f subsection (a) o f this section shall not be liable for damages or subject to criminal prosecution for any determination
made i n accordance with the usual and customary standards o f medical practice.
(c) I n the case o f an infant, as defined i n 45 CFR 1340.15 (b), the physician or licensed medical facility shall comply w i t h the
provisions o f 45 CFR 1340.15 (b)(2) i n addition to the provisions o f subsection (a) o f t h i s section.
Credits
(1985, P.A. 85-606, § 2; 1991, P.A. 91-283, § 2; 1991, June Sp.Sess., P.A. 91-11, § 19, eff. Oct. 1, 1991; 1993, P.A. 93-407, §
5; 2001, P.A. 01-195, § 162, eff. July 11, 2001; 2002, P.A. 02-105, § 7; 2006, P.A. 06-195, § 64.)
Notes o f Decisions (4)
Footnotes
1
C.G.S.A. § 20-8 et seq.
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^^PV
1
§ 19a-571. Liability re r e m o v a l of life s u p p o r t s y s t e m of..., C T S T § 19a-571
C. G. S. A . § 19a-571, CT ST § 19a-571
End of Document
WestlawNext' © 2015 T h o m s o n Reuters. No claim to original U.S. G o v e r n m e n t W o r k s .
^^QM
2
§ 19a-580. P h y s i c i a n to notify c e r t a i n p e r s o n s prior to r e m o v a l of.,., C T S T § 19a-580
Connecticut General Statutes A n n o t a t e d
T i t l e 19a. P u b l i c H e a l t h a n d W e l l - B e i n g (Refs & A n n o s )
C.G.SA. § i 9 a - 5 8 o
§ 198-580. Physician t o n o t i f y certain persons p r i o r t o r e m o v a l o f l i f e s u p p o r t system
Currentness
W i t h i n a reasonable time prior to withholding or causing the removal o f any life support system pursuant to sections 19a-570,
19a-571, 19a-573 and 19a-575 to 19a-580c, inclusive, the attending physician shall make reasonable efforts to n o t i f y the
individual's health care representative, next-of-kin, legal guardian, conservator or person designated i n accordance w i t h section
l-56r, i f available.
Credits
(1991, P.A. 91-283, § 8; 1993, P.A. 93-407, § 10; 2002, P.A. 02-105, § 9; 2006, P.A. 06-195, § 73.)
C. G. S. A . § 19a-580, CT ST § 19a-580
End of Document
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^^QN
PUBLIC and SPECIAL ACTS
p
^sed
by the General Assembly
JANUARY, 1985, REGULAR SESSION
JULY, 1985, SPECIAL SESSION
COMPILED, INDEXED A N D
PUBLISHED I N ACCORDANCE W I T H
SECTION 2-58 OF THE GENERAL STATUTES
BY THE
LEGISLATIVE COMMISSIONERS' OFFICE
HARTFORD, CONNECTICUT
1985
^^QO
IBLIC ACTS
information by
ty of a class D
> the contrary,
of children and
proved by the
rmation to the
inal conviction
including one
>r treatment of
parents! All
ocured by the
service agency
ach agencies or
this subsection
j department of
mcies shall be
o the contrary,
nent of mental
rmation to said
f an applicant
lentally retarded
spartment which
disclosure shall
or B felonies or
don procured by
md shall not be
\ny violation of
y of information
punishable by a
HON OF LAW
INAL JUSTICE
DURCES SUCH
)RMATION TO
CONVICTION
3RS OF SUCH
ANT, FOR A
HOME. A L L
CONVICTION
'ARTMENT OF
}, SHALL BE
MSCLOSED B Y
IONS OF THIS
^TIALITY
OF
i OF HUMAN
DF NOT MORE
JANUARY 1985
P.A, 85=605
1237
(i) NOTWITHSTANDING ANY OTHER PROVISION OF LAW
TO THE CONTRARY, UPON THE REQUEST TO A CRIMINAL
JUSTICE AGENCY B Y THE DEPARTMENT OF HEALTH SERVICES
SUCH
CRIMINAL
JUSTICE
AGENCY
SHALL
PROVIDE
INFORMATION
TO THE DEPARTMENT
CONCERNING THE
CRIMINAL CONVICTION RECORD OF AN APPLICANT AND ANY
STAFF OF SUCH APPLICANT FOR A LICENSE TO OPERATE A DAY
CARE CENTER OR GROUP DAY CARE HOME. ALL INFORMATION
INCLUDING ANY CRIMINAL CONVICTION RECORD, SHALL B E
PROCURED B Y THE DEPARTMENT OF HEALTH SERVICES FOR
LICENSING PURPOSES, SHALL B E CONFIDENTIAL AND SHALL
NOT B E FURTHER DISCLOSED B Y SUCH AGENCY OR THEIR
REPRESENTATIVES. ANY VIOLATION OF THE PROVISIONS OF
THIS SUBSECTION RELATIVE TO THE CONFIDENTIALITY OF
INFORMATION RECEIVED B Y THE DEPARTMENT OF HEALTH
SERVICES SHALL B E PUNISHABLE B Y A FINE OF NOT MORE THAN
ONE THOUSAND DOLLARS.
Substitute House Bill No. 6701
PUBLIC A C T NO. 85-605
AN ACT CONCERNING TESTIMONY OF EXPERT WITNESSES IN
CRIMINAL CASES.
(NEW) No expert witness testifying with respect to the mental state
or condition of a defendant in a criminal case may state an opinion or
inference as to whether the defendant did or did not have the mental state or
condition constituting an element of the crime charged or of a defense
thereto, except that such expert witness may state his diagnosis of the
mental state or condition of the defendant. The ultimate issue as to whether
the defendant was criminally responsible for the crime charged is a matter
for the trier of fact alone.
Substitute Senate Bill No. 67
AN ACT CONCERNING DEATH WITH DIGNITY.
Section 1. (NEW) For purposes of this act:
(1) 'Life support system" means any mechanical or electronic
device, excluding the provision of nutrition and hydration, utilized by any
physician or licensed medical facility in order to replace, assist or
supplement the function of any human vital organ or combination of organs
and which prolongs the dying process;
(2) "Beneficial medical treatment" includes the use of surgery,
treatment, medication and the utilization of artificial technology to sustain
life.
(3) 'Terminal condition" means the final stage of an incurable
or irreversible medical condition which, in the opinion of the attending
physician, will result in death.
^^QP
m
PUBLIC ACTS
P.A. 85-607
1238
Sec. 2. (NEW) Any physician licensed under chapter 370 of the
general statutes or any licensed medical facility which removes or causes the
removal of a life support system of an incompetent patient shall not be liable
for damages in any civil action or subject to prosecution in any criminal
proceeding for such removal, provided (1) the decision to remove such life
support system is based on the best medical judgment of the attending
physician; (2) the attending physician deems the patient to be in a terminal
condition; (3) the attending physician has obtained the informed consent of
the next of kin, if known, or legal guardian, if any, of the patient prior to
removal; and (4) the attending physician has considered the patient's wishes
as expressed by the patient directly, through his next of kin or legal
guardian, or in the form of a document executed in accordance with section
6 of this act, if any such document is presented to, or in the possession of,
the attending physician at the time the decision to terminate a life support
system is made. If the attending physician does not deem the patient to be in
a terminal condition, beneficial medical treatment and nutrition and
hydration must be provided.
Sec. 3. (NEW) This act creates no presumption concerning the
wishes of a patient who has not executed a document as described in section
6 of this act.
Sec. 4. (NEW) Notwithstanding the provisions of this act, comfort
care and pain alleviation shall be provided in all cases.
Sec. 5. (NEW) The provisions of this act shall not apply to a
pregnant patient.
Sec. 6. (NEW) Any adult person may execute a document in
substantially the following form:
If the time comes when I am incapacitated to the point when I can no
longer actively take part in decisions for my own life, and am unable to direct
my physician as to my own medical care, I wish this statement to stand as a
testament of my wishes. I .... (NAME) request that I be allowed to die and
not be kept alive through life support systems if my condition is deemed
terminal. I do not intend any direct taking of my life, but only that my dying
not be unreasonably prolonged. This request is made, after careful
reflection, while I am of sound mind.
(Signature)
(Date)
(Witness)
(Witness)
JANUARY 1!
dollars or mon
known as tl
three-fourths oi
fund. In no eve
which would c£
one million dol]
Sec. 2.
commissioner o
commissioner,
schools, a rer.
members chose
occupational scl
education shall
fund with the a
procure an in<
occupational sch
dollars because
10-14i and 10-L
the benefit of p i
to the private <
applied against
student protectic
funds in the ,'
protection fund
indemnity or ins
SCHOOL
Sec. 3.
committee, shall
Applications for
as the commiss
prescribe. The c
advisory commit
representing tuiti
commissioner, w
shall conduct a
occupational sch<
and shall ascertj
determined by t
Each private occ
10-7a to 10-71,
commissioner wi
such time and
commissioner shs
not later than Fel
Section 1. (NEW) After each annual determination of the balance
of the private occupational student protection fund required by section
10- 14k of the general statutes, if the balance of the fund is one million
Sec. 4. <
and ordered to tx
committee, from
AN ACT ESTABLISHING
STUDENT BENEFIT FUND.
A
PRIVATE OCCUPATIONAL
^^QQ
PUBLIC and SPECIAL ACTS
Passed by the General Assembly
JANUARY, 1991, REGULAR SESSION
JUNE, 1991, SPECIAL SESSIONS
COMPILED, INDEXED AND
PUBLISHED LN ACCORDANCE WITH
SECTION 2-58 OF THE GENERAL STATUTES
BY THE
LEGISLATIVE COMMISSIONERS' OFFICE
HARTFORD, CONNECTICUT
1991
^^QR
PUBLIC ACTS
J A N U A R Y 1991
tecutive director [,
osit in a special or
ivision, which the
ated by him which
s received by such
lion, if any, authotheir receipts and
jj such information
jtermines that any
fRESPONSIBJLy sales agent with
ome delinquent in
., the executive dimal to ten per cent
interest at the rate
i>n of a month from
ovisions of section
•rovided under this
ly such moneys to
vas not intentional
e notified of such
ontest the validity
hereby authorized
>rized to designate
ie executive direcleriff, constable or
delinquent lottery
itemized bill shall
aent ofthe amount
force and effect as
shall be levied on
nt and sale made
rce and effect as a
ith the advice and
pter 54 to carry out
marshal on each floor. Not later than October 1, 1993, each residential building having more than four stories and occupied primarily by elderly persons shall have an
automatic fire extinguishing system approved by the state fire marshal on each floor.
FOR THE PURPOSES OF THIS SUBSECTION, THE PHRASE "OCCUPIED PRIMARILY BY ELDERLY PERSONS" MEANS THAT ON OCTOBER 1,1993, OR
ON THE DATE OF ANY INSPECTION, IF LATER, A MINIMUM OF EIGHTY
PER CENT OF THE DWELLING UNITS AVAILABLE FOR HUMAN OCCUPANCY IN A RESIDENTIAL BUILDING HAVE AT LEAST ONE RESIDENT
WHO HAS ATTAINED THE AGE OF SIXTY-FIVE YEARS.
Sec. 2. There is established a task force which shall determine the number of
residential buildings occupied primarily by elderly persons and subject to compliance
with the provisions of section 1. of this act which are effective October 1,1993, the cost
of such compliance, and the feasibility of compliance within the time limit established. The task force shall consist of the commissioners of the departments of public
safety and housing, or their designees, a member of the joint standing committee of the
general assembly having cognizance of matters relating to public safety, appointed by
the president pro tempore of the senate, a member of the joint standing committee of
the general assembly having cognizance of human services, appointed by the majority
leader of the senate, an automatic fire extinguishing system contractor, appointed by
the minority leader of the senate, a representative of the Connecticut Fire Marshal's
Association, appointed by the speaker ofthe house of representatives, amember ofthe
state building codes and standards committee, appointed by the majority leader of the
house of representatives and a person having expertise in elderly housing appointed by
the minority leader of the house of representatives. The members of the task force shall
serve without compensation or reimbursement of any kind and the task force shall
report its findings to the general assembly not later than February 15, 1992.
Sec. 3. This act shall take effect from its passage, except section 1 shall take
effect October 1,1991.
r
:
P . A , 91-283
647
Approved June 24,1991
Substitute House Bill No. 7184
AN ACT CONCERNING LIVING WILLS.
I C FIRE EXTIN-
tatutes is repealed
ng more than four
d by the state fire
Section 1. Section 19a-570 of the general statutes is repealed and the following is substituted in lieu thereof:
For purposes of this section and sections 19a-571 to 19a-575, inclusive:
(1) "Life support system" means any [mechanical or electronic device, excluding the provision of nutrition and hydration, utilized by any physician or licensed
medical facility in order to replace, assist or supplement the function of any human
vital organ or combination of organs and which prolongs the dying process] MEDICAL PROCEDURE OR INTERVENTION WHICH, WHEN APPLIED TO AN INDIVIDUAL, WOULD SERVE ONLY TO POSTPONE THE MOMENT OF
DEATH OR MAINTAIN THE INDIVIDUAL IN A STATE OF PERMANENT UNCONSCIOUSNESS. LN THESE CIRCUMSTANCES, SUCH PROCEDURES
SHALL INCLUDE, BUT ARE NOT LIMITED TO, MECHANICAL OR ELECTRONIC DEVICES INCLUDING ARTIFICIAL MEANS OF PROVIDING NUTRITION OR HYDRATION;
^^QS
648
P.A. 91=283
PUBLIC ACTS
(2) "Beneficial medical treatment" includes the use of surgery, treatment,
medication and the utilization of artificial technology to sustain life;
(3) "Terminal condition" means the final stage of an incurable or irreversible
medical condition which, [in the opinion of the attending physician] WITHOUT THE
ADMINISTRATION OF A LIFE SUPPORT SYSTEM, will result in death WITHIN
A RELATIVELY SHORT TIME, IN THE OPINION OF THE ATTENDING PHYSICIAN;
(4) "PERMANENTLY UNCONSCIOUS" INCLUDES PERMANENT
COMA AND PERSISTENT VEGETATIVE STATE AND MEANS A N IRREVERSIBLE CONDITION IN WHICH THE INDIVIDUAL IS AT NO TIME
AWARE OF HIMSELF OR THE ENVIRONMENT AND SHOWS NO BEHAVIORAL RESPONSE TO THE ENVIRONMENT;
(5) "HEALTH CARE AGENT" MEANS A N ADULT PERSON TO WHOM
AUTHORITY TO CONVEY HEALTH CARE DECISIONS IS DELEGATED IN A
WRITTEN DOCUMENT BY ANOTHER ADULT PERSON, KNOWN AS THE
PRINCIPAL;
(6) "INCAPACITATED" MEANS BEING UNABLE TO UNDERSTAND
AND APPRECIATE THE NATURE AND CONSEQUENCES OF HEALTH CARE
DECISIONS, INCLUDING THE BENEFITS AND DISADVANTAGES OF SUCH
TREATMENT, AND TO REACH AND COMMUNICATE AN INFORMED DECISION REGARDING THE TREATMENT;
(7) "LIVING WILL" MEANS A WRITTEN STATEMENT TN COMPLIANCE WITH SECTION 19a-575, AS AMENDED BY SECTION 5 OF THIS ACT,
CONTAINING A DECLARANT'S WISHES CONCERNING ANY ASPECT OF
HIS HEALTH CARE, INCLUDING THE WITHHOLDING OR WITHDRAWAL
OF LIFE SUPPORT SYSTEMS;
(8) "NEXT OF KIN" MEANS ANY MEMBER OF THE FOLLOWING
CLASSES OF PERSONS, I N THE ORDER OF PRIORITY LISTED: (A) THE
SPOUSE OF THE PATIENT; (B) A N ADULT SON OR DAUGHTER OF THE PATIENT; (C) EITHER PARENT OF THE PATIENT; (D) AN ADULT BROTHER OR
SISTER OF THE PATIENT; AND (E) A GRANDPARENT OF THE PATIENT;
(9) "ATTENDING PHYSICIAN" MEANS THE PHYSICIAN SELECTED
BY, OR ASSIGNED TO, THE PATIENT AND WHO HAS PRIMARY RESPONSIBILITY FOR THE TREATMENT AND CARE OF THE PATIENT.
Sec. 2. Section 19a-571 ofthe general statutes is repealed and the following
is substituted in lieu thereof:
(a) Any physician licensed under chapter 370 or any licensed medical facility
WHO OR which WITHHOLDS, removes or causes the removal of a life support system of an [incompetent] INCAPACITATED patient shall not be liable for damages in
any civil action or subject to prosecution in any criminal proceeding for such WITHHOLDING OR removal, provided (1) the decision to WITHHOLD OR remove such
life support system is based on the best medical judgment of the attending physician IN
ACCORDANCE WITH THE USUAL AND CUSTOMARY STANDARDS OF
MEDICAL PRACTICE; (2) the attending physician deems the patient to be in a terminal condition [; (3) the attending physician has obtained the informed consent of the
nextof kin, if known, or legal guardian, if any, of the patient prior to removal; and (4)]
OR, I N CONSULTATION WITH A PHYSICIAN QUALIFIED TO MAKE A NEUROLOGICAL DIAGNOSIS WHO HAS EXAMINED THE PATIENT, DEEMS
THE PATIENT TO BE PERMANENTLY UNCONSCIOUS; AND (3) the attending
physician has considered the patient's wishes CONCERNING THE WITHHOLDING OR WITHDRAWAL OF LIFE SUPPORT SYSTEMS. I N THE DETERMINA-
^^QT
J A N U A R Y 19!
TION OF THE
SHALL CONSII
next of kin or leg
with section 19adocument is pres
the decision to \
WISHES OF T H
THE ATTEND!
PATIENT BY O
RECTLY TO T I
TIENT'S HEAL
TIENT'S LEG^
OTHER PERSC
WISHES, IF T I
PERSON. A L L
ACT I N GOOD
TATED patient
SCIOUS, benefi
must be provide<
(b)AF.
NOSISWHOIS
TO SUBDIVTSIi
LIABLE FOR I
ANY DETERM
CUSTOMARY
Sec. 3.
health care agen
signed and dated
sign the docume:
tion of such doci
(b) For
of mental health
the facility and i
specialized train
(c) For
of mental retard
with the facility
with specialized
(d) An.
rest home with l
not be appointee
ment.isapatien
facilities. An ad
responsible for £
such person. TI
ployee is related
(e) A p
cian for the prin
Sec. 4.
is substituted in
(a) No
' U B L I C ACTS
rgery, treatment,
5
Die or irreversible
WITHOUTTHE
in death WITHIN
TENDING PHY¬
. PERMANENT
ANS A N IRREAT NO TIME
VS NO BEHAVSONTOWHOM
LEGATED IN A
NfOWN AS THE
UNDERSTAND
HEALTHCARE
AGES OFSUCH
FORMED DECIvfT I N COMPLI5 OF THIS ACT,
MY ASPECT OF
WITHDRAWAL
E FOLLOWING
STED: (A) THE
?ER OF THE PA¬
T BROTHER OR
HE PATIENT;
IAN SELECTED
^RYRESPONSIT.
and the following
id medical facility
a life support sys)le for damages in
I for such WITHOR remove such
ding physician I N
IANDARDS OF
ntto be inatermited consent of the
removal; and (4)]
DMAKEANEUTIENT, DEEMS
)(3) the attending
IE WITHHOLDEDETERMINA1
P.A, 91-283
JANUARY1991
649
TION OF THE WISHES -OF THE PATIENT, THE ATTENDING PHYSICIAN
SHALL CONSIDER THE WISHES as expressed by [the patient directly, through his
next of kin or legal guardian, or in the form of] a document executed in accordance
with section 19a-575, AS AMENDED BY SECTION 5 OF THIS ACT, i f any such
document is presented to, or in the possession of, the attending physician at the time
the decision to WITHHOLD OR terminate a life support system is made. IF THE
WISHES OF THE PATIENT HAVE NOT BEEN EXPRESSED I N A LIVING WILL
THE ATTENDING PHYSICIAN SHALL DETERMINE THE WISHES OF THE
PATIENT BY CONSULTING ANY STATEMENT MADE BY THE PATIENT DIRECTLY TO THE ATTENDING PHYSICIAN AND, IF AVAILABLE, THE PATIENT'S HEALTH CARE AGENT, THE PATIENT'S NEXT OF K I N , THE PATIENT'S LEGAL GUARDIAN OR CONSERVATOR, IF ANY, AND ANY
OTHER PERSON TO WHOM THE PATIENT HAS COMMUNICATED HIS
WISHES IF THE ATTENDING PHYSICIAN HAS KNOWLEDGE OF SUCH
PERSON. ALL PERSONS ACTING ON BEHALF OF THE PATIENT SHALL
ACT LN GOOD FAITH. I f the attending physician does not deem the INCAPACITATED patient to be in a terminal condition OR PERMANENTLY UNCONSCIOUS, beneficial medical treatment [and] INCLUDING nutrition and hydration
must be provided.
(b) A PHYSICIAN QUALIFIED TO MAKE A NEUROLOGICAL DIAGNOSIS WHO IS CONSULTED BY THE ATTENDING PHYSICIAN PURSUANT
TO SUBDIVISION (2) OF SUBSECTION (a) OF THIS SECTION SHALL NOT BE
LIABLE FOR DAMAGES OR SUBJECT TO CRIMINAL PROSECUTION FOR
ANY DETERMINATION MADE I N ACCORDANCE WITH THE USUAL AND
CUSTOMARY STANDARDS OF MEDICAL PRACTICE.
Sec. 3. (NEW) (a) Any person eighteen years of age or older may appoint a
health care agent by executing a document in accordance with section 6 of this act,
signed and dated by such person in the presence of two adult witnesses who shall also
sign the document. The person appointed as agent shall not act as witness to the execution of such document or sign such document.
(b) For persons who reside in facilities operated or licensedby the department
of mental health, at least one witness shall be an individual who is not affiliated with
the facility and at least one witness shall be a physician or clinical psychologist with
specialized training in treating mental illness.
(c) For persons who reside in facilities operated or licensed by the department
of mental retardation, at least one witness shall be an individual who is not affiliated
with the facility and at least one witness shall be a physician or clinical psychologist
with specialized training in developmental disabilities.
(d) An operator, administrator, or employee of a hospital, home for the aged,
rest home with nursing supervision, or chronic and convalescent nursing home may
not be appointed as a health care agent by any person who, at the time of the appointment , is a patient or a resident of, or has applied for admission to, one of the foregoing
facilities! An administrator or employee of a government agency which is financially
responsible for a person's medical care may not be appointed as a health care agent for
such person. This restriction shall not apply if such operator, administrator or employee is related to the principal by blood, marriage or adoption.
(e) A physician shall not act as both agent for a principal and attending physician for the principal.
Sec. 4. Section 19a-573 of the general statutes is repealed and the following
(a) Notwithstanding the provisions of sections 19a-571, 19a-572, 19a-574,
^^QU
650
PUBLIC ACTS
P . A . 91-283
J A N U A R Y 1!
(CROJ
ADMINISTER
[and] 19a-575, AS AMENDED BY SECTIONS 2 AND 5 OF THIS ACT, AND THE
PROVISIONS OF SECTIONS 6, 11 AND 13 OFTHIS ACT, comfort care and pain
alleviation shall be provided in all cases.
(b) ANY DOCUMENT EXECUTED PRIOR TO THE EFFECTIVE DATE
OF THIS ACT IN ACCORDANCE WITH SECTION 19a-575, REVISION OF
1958, REVISED TO JANUARY 1, 1991, SHALL NOT BE INVALIDATED BY
ANY PROVISION OF THIS ACT. ANY DOCUMENT EXECUTED PRIOR TO
THE EFFECTIVE DATE OF THIS ACT SHALL NOT BE PRESUMED TO PROHIBIT WITHHOLDING OR WITHDRAWAL OF LIFE SUPPORT SYSTEMS AS
DEFINED I N SECTION 19a-570, REVISION OF 1958, REVISED TO JANUARY
1, 1991, UNLESS SUCH PRIOR DOCUMENT SPECIFICALLY ADDRESSES
SUCH WITHHOLDING OR WITHDRAWAL.
Sec. 5. Section 19a-575 of the general statutes is repealed and the following
Any [adult] person EIGHTEEN YEARS OF AGE OR OLDER may execute
a document WHICH SHALL CONTAIN DIRECTIONS AS TO SPECIFIC LIFE
SUPPORT SYSTEMS WHICH SUCH PERSON CHOOSES TO HAVE ADMINISTERED. SUCH DOCUMENT SHALL BE SIGNED AND DATED BY THE
MAKER WITH AT LEAST TWO WITNESSES AND MAY BE in substantially the
following form:
DOCUMENT CONCERNING WITHHOLDING OR WITHDRAWAL
OF LIFE SUPPORT SYSTEMS.
If the time comes when I am incapacitated to the point when I can no longer
actively take part in decisions for my own life, and am unable to direct my physician as
to my own medical care, I wish this statement to stand as a testament of my wishes. [ I
.... (NAME) request that I be allowed to die and not be kept alive through life support
systems if my condition is deemed terminal. I do not intend any direct taking of my
life, but only that my dying not be unreasonably prolonged. This request is made, after
careful reflection, while I am of sound mind.
IDOr
THAT MY DY
OTHE
"THIS
I A M OF SOU!
THIS
ABOVE-NAM
AGE OR OLD
TORE AND O
THEDOCUM
.... (WITNES5
.... (ADDRES
.... (WITNES!
.... (ADDRES
Sec. (
document that
.... (Signature)
....(Date)
.... (Witness)
.... (Witness)]
" I , .... (NAME), REQUEST THAT, IF M Y CONDITION IS DEEMED
TERMINAL OR IF I A M DETERMINED TO BE PERMANENTLY UNCONSCIOUS , I BE ALLOWED TO DIE AND NOT BE KEPT ALIVE THROUGH LIFE
SUPPORT SYSTEMS. BY TERMINAL CONDITION, I MEAN THAT I HAVE
AN INCURABLE OR IRREVERSIBLE MEDICAL CONDITION WHICH, WITHOUT THE ADMINISTRATION OF LIFE SUPPORT SYSTEMS, WILL, I N THE
OPINION OF M Y ATTENDING PHYSICIAN, RESULT I N DEATH WITHIN A
RELATIVELY SHORT TIME. BY PERMANENTLY UNCONSCIOUS I MEAN
THAT I A M IN A PERMANENT COMA OR PERSISTENT VEGETATIVE STATE
WHICH IS A N IRREVERSIBLE CONDITION TN WHICH I A M AT NO TIME
AWARE OF MYSELF OR THE ENVIRONMENT AND SHOW NO BEHAVIORAL RESPONSE TO THE ENVIRONMENT. THE LIFE SUPPORT SYSTEMS
WHICH I DO NOT WANT INCLUDE, BUT ARE NOT LIMITED TO:
ARTIFICIAL RESPIRATION
CARDIOPULMONARY RESUSCITATION
ARTIFICIAL MEANS OF PROVIDING NUTRITION AND HYDRATION
^^QV
I
" I APPOINT .
M Y ATTENE
DERSTAND
HEALTH CA
FORMED D
AGENT IS Al
(1) C
WITHHOLD]
(2) T
THAT M Y W
IF T
HEALTH CA
TERNATIVE
"THIS REQU
SOUND MIN.
THI;
ABOVE-NA!
OF AGE OR
P . A . 91-283
UBLIC ACTS
J A N U A R Y 1991
ACT, AND THE
brt care and pain
(CROSS OUT AND INITIAL LIFE SUPPORT SYSTEMS YOU WANT
ADMINISTERED)
7
ECTIVE DATE
REVISION OF
ALIDATED BY
rED PRIOR TO
JMED TO PROr SYSTEMS AS¬
)TO JANUARY
Y ADDRESSES
md the following
)ER may execute
SPECIFIC LIFE
.AVE ADMINISVTED BY THE
substantially the
DRAWAL
:n I can no longer
t my physician as
iof my wishes. [ I
ough life support
rect taking of my
lest is made, after
(Signature)
.... (Date)
)N IS DEEMED
NTLY UNCONrHROUGHLIFE
f THAT I HAVE
WHICH, WITH¬
, WILL, IN THE
ATH WITHIN A
CIOUS I MEAN
TATIVE STATE
VI AT NO TIME
W NO BEHAV>ORT SYSTEMS
} TO:
AND HYDRA-
651
I DO NOT INTEND ANY DIRECT TAKING OF MY LIFE, BUT ONLY
THAT M Y DYING NOT BE UNREASONABLY PROLONGED."
OTHER SPECIFIC REQUESTS:
"THIS REQUEST IS MADE, AFTER CAREFUL REFLECTION, WHILE
I A M OF SOUND MIND."
.... (SIGNATURE)
....(DATE)
THIS DOCUMENT WAS SIGNED IN OUR PRESENCE, BY THE
ABOVE-NAMED .... (NAME) WHO APPEARED TO BE EIGHTEEN YEARS OF
AGE OR OLDER, OF SOUND MIND AND ABLE TO UNDERSTAND THE NATURE AND CONSEQUENCES OF HEALTH CARE DECISIONS AT THE TIME
THE DOCUMENT WAS SIGNED.
....(WITNESS)
.... (ADDRESS)
.... (WITNESS)
....(ADDRESS)
Sec. 6. (NEW) (a) Any person eighteen years of age or older may execute a
document that may, but need not be in substantially the following form:
DOCUMENT CONCERNING THE APPOINTMENT
OF HEALTH CARE AGENT
" I APPOINT
(name) TO BE M Y HEALTH CARE AGENT. IF
MY ATTENDING PHYSICIAN DETERMINES THAT I A M UNABLE TO UNDERSTAND AND APPRECIATE THE NATURE AND CONSEQUENCES OF
HEALTH CARE DECISIONS AND TO REACH AND COMMUNICATE AN INFORMED DECISION REGARDING TREATMENT, M Y HEALTH CARE
AGENT IS AUTHORIZED TO:
(1) CONVEY TO M Y PHYSICIAN M Y WISHES CONCERNING THE
WITHHOLDING OR REMOVAL OF LIFE SUPPORT SYSTEMS.
(2) TAKE WHATEVER ACTIONS ARE NECESSARY TO ENSURE
THAT M Y WISHES ARE GIVEN EFFECT.
IF THIS PERSON IS UNWILLING OR UNABLE TO SERVE AS M Y
HEALTH CARE AGENT, I APPOINT
(name) TO BE M Y ALTERNATIVE HEALTH CARE AGENT."
"THIS REQUEST IS MADE, AFTER CAREFUL REFLECTION, WHILE I A M OF
SOUND MIND."
.... (Signature)
.... (Date)
THIS DOCUMENT WAS SIGNED I N OUR PRESENCE, BY THE
ABOVE-NAMED
(name) WHO APPEARED TO BE EIGHTEEN YEARS
OF AGE OR OLDER, OF SOUND MIND AND ABLE TO UNDERSTAND THE
^^RM
652
P . A . 91-283
PUBLIC ACTS
NATURE AND CONSEQUENCES OF HEALTH CARE DECISIONS AT THE
TIME THE DOCUMENT WAS SIGNED.
.... (Witness)
.... (Address)
.... (Witness)
.... (Address)
Sec. 7. (NEW) (a) Any or all of the attesting witnesses to any living will
document or any document appointing a health care agent may, at the request of the
declarant, make and sign an affidavit before any officer authorized to administer oaths
in or out of this state, stating such facts as they would be required to testify to in court to
prove such living will. The affidavit shall be written on the living will document, or i f
that is impracticable, on some paper attached thereto. The sworn statement of any such
witness so taken shall be accepted by the court of probate as if it had been taken before
such court.
(b) A physician or other health care provider who is furnished with a copy of a
written living will or appointment of health care agent shall make it a part of the declarant's medical record. A physician or other health care provider shall also record in the
patient's medical record any oral communication concerning any aspect of his health
care, including the withholding or withdrawal of life support systems, made by the
patient directly to the physician or other health care provider or to the patient's health
care agent, legal guardian, conservator or next-of-kin.
Sec. 8. (NEW) Within a reasonable time prior to withholding or causing the
removal of any life support system pursuant to this act, the attending physician shall
make reasonable efforts to notify the individual's health care agent, next-of-kin and
legal guardian or conservator, if available.
Sec. 9. (NEW) (a) A living will or appointment of health care agent may be
revoked at any time and in any manner by the declarant, without regard to the declarant ' s mental or physical condition.
(b) The attending physician or other health care provider shall make the revocation a part of the declarant's medical record.
(c) In the absence of knowledge of the revocation either of a living will or an
appointment of health care agent, a person is not subject to civil or criminal liability or
discipline for unprofessional conduct for carrying out the living will pursuant to the
requirements of this act.
Sec. 10. (NEW) A living will or appointment of health care agent becomes
operative when (1) the document is furnished to the attending physician and (2) the
declarant is determined by the attending physician to be incapacitated.
Sec. 11. (NEW) An attending physician or health care provider who is unwilling to comply with the wishes of the patient or this act shall, as promptly as practicable, take all reasonable steps to transfer care of the patient to a physician or health
care provider who is willing to comply with the wishes of the patient and this act.
Sec. 12. (NEW) The probate court for the district in which the person is domiciled or is located at the time of the dispute shall have jurisdiction over any dispute
concerning the meaning or application of any provision of this act. With respect to any
communication of a patient's wishes other than by means of a document executed in
accordance with section 19a-575 of the general statutes, as amended by section 5 of
this act, the court shall consider whether there is clear and convincing evidence of such
communication.
Sec. 13. (NEW) No physician, health care provider or health care insurer
shall require a person to execute a living will or appoint a health care agent as a condition of treatment or receiving health care benefits.
^^RN
J A N U A R Y 1991
Sec. 14. (
agent shall be revol
orupontheannuln
otherwise.
AN ACT CONCI
DURES FOR STA
Section 1
substituted in lieu
(a)Anyp
state, acting throu
design, constructii
bridge, building o
state may, in the e\
TNG OUT OF TH
OF PUBLIC WOl
judicial district of
mined, provided i
DER SUCH CO!
CLAIM shall have
administering the
the agency head e
action ON A CL/
section later than
agency head as so
not preclude any j
Such action shall I
mental immunity
BE AWARDED
OR AN ARBITR
SAME PERIOD*
GINTOACCRU
THIRTY DAYS,
AGENCY FOR 1
BASED, ALON
WHENAPPLIG
be privileged in r
(b) As a
(a) of this sectio
[which has entere
commissions or
ment, repair or al
cal subdivision o
tract,] HAVING
P . A . 91-284
653
B L I C ACTS
J A N U A R Y 1991
DNS AT THE
Sec. 14. (NEW) The appointment of the principal's spouse as health care
agent shall be revoked upon the divorce or legal separation of the principal and spouse
or upon the annulment or dissolution of their marriage, unless the principal specifies
otherwise.
iny living will
• request of the
Iminister oaths
fy to in court to
locument, or if
ent of any such
;n taken before
vithacopy of a
:t of the declar10 record in the
^t of his health
i, made by the
iatient's health
or causing the
)hysician shall
ext-of-kin and
\ agent may be
1 to the declarnakefherevoving will or an
inal liability or
mrsuant to the
igent becomes
an and (2) the
ler who is unaptly as practiician or health
nd this act.
i person is doer any dispute
respect to any
nt executed in
»y section 5 of
idence of such
h care insurer
snt as a condi-
P U B L I C A C T N O . 91-284
AN ACT CONCERNING ALTERNATIVE DISPUTE RESOLUTION PROCEDURES FOR STATE CONSTRUCTION CLAIMS.
Section 1. Section 4-61 ofthe general statutes is repealed and the following is
substituted in lieu thereof:
(a) Any person, firm or corporation which has entered into a contract with the
state, acting through any of its departments, commissions or other agencies, for the
design, construction, construction management, repair or alteration of any highway,
bridge,' building or other public works of the state or any political subdivision of the
state may in the event of any disputed claims under such contract OR CLAIMS ARISING OUT OF THE AWARDING OF A CONTRACT BY THE COMMISSIONER
OF PUBLIC WORKS, bring an action against the state to the superior court for the
judicial district of Hartford-New Britain* for the purpose of having such claims determined provided notice of [the general nature of] EACH such [claims] CLAIM UNDER SUCH CONTRACT AND THE FACTUAL BASES FOR EACH SUCH
CLAIM shall have been given in writing to the AGENCY HEAD OF THE department
administering the contract not later than two years after the acceptance of the work by
the agency head evidenced by a certificate of acceptance issued to the contractor. No
action ON A CLAIM UNDER SUCH CONTRACT shall be brought under this subsection later than three years from the date of such acceptance of the work by the
agency head as so evidenced. Acceptance of an amount offered as final payment shall
not preclude any person, firm or corporation from bringing a claim under this section.
Such action shall be tried to the court without a jury. All legal defenses except governmental immunity shall be reserved to the state. IN NO EVENT SHALL INTEREST
BE AWARDED UNDER SECTION 13a-96 AND SECTION 37-3a BY A COURT
OR AN ARBITRATOR TO THE CLAIMANT FOR THE SAME DEBT FOR THE
SAME PERIOD OF TIME. INTEREST UNDER SECTION 37-3a SHALL NOT BEGIN TO ACCRUE TO A CLAIMANT UNDER THIS SECTION UNTIL AT LEAST
THIRTY DAYS AFTER THE CLAIMANT SUBMITS A BILL OR CLAIM TO THE
AGENCY FOR THE UNPAID DEBT UPON WHICH SUCH INTEREST IS TO BE
BASED, ALONG WITH APPROPRIATE DOCUMENTATION OF THE DEBT
WHEN APPLICABLE. Any action brought under this [section] SUBSECTION shall
be privileged in respect to assignment for trial upon motion of either party.
(b) As an alternative to the [remedy] PROCEDURE provided in subsection
(a) of this section, [and section 13b-57a,] any SUCH person, firm or corporation
[which has entered into a contract with the state, acting through any of its departments,
commissions or other agencies, for the design, construction, construction management , repair or alteration of any highway, building or bridge of the state or any political subdivision of the state, may, in the event of any disputed claims under such contract ] HAVING A CLAIM UNDER SAID SUBSECTION (a) M A Y submit A
^^RO

Marsala v. Yale New Haven Hospital (Conn App Dec 2015)

Transcription

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